A summary of Ontario’s Human Rights Code and how it applies to employees and employers. (This blog post originally appeared on the Maytree Blog on July 16, 2012.)
By Bonnie Mah
On June 19, we attended a human rights training workshop delivered by the Ontario Human Rights Commission (thanks to the Beyond Canadian Experience project for including us). Here’s a summary of some of the important things about human rights, and how they apply to employers and employees in Ontario.
Please note: This summary is based on a training session delivered by the Ontario Human Rights Commission (OHRC). It is not an exhaustive review of Ontario human rights law, policy or practice. For more information, please visit the OHRC website.
Ontario Human Rights Code – the Basics
What areas does the Code cover?
The Code covers five areas:
- Services (for example, government services, hospitals, schools, public transit)
- Accommodation (for example, housing, hotels)
- Vocational association (for example, regulatory bodies, unions)
What aspects of a person’s identity (grounds) does the Code protect?
The Code protects 15 grounds:
- Place of origin
- Ethnic origin
- Sex / pregnancy / gender identity
- Family status
- Marital status
- Sexual orientation
- Receipt of public assistance (in area of accommodation)
- Record of offence (in area of employment)
How can you tell if something is covered by the Code?
Try using this sentence: This is discrimination based on ______ in the area of ______.
Example: This is discrimination based on ethnic origin in the area of employment.
What is discrimination?
Discrimination is treating somebody differently because of his or her race, disability, sex or other personal characteristics. Discrimination has many different forms. The key is differential treatment.
Interestingly, the Code considers effect, not intent. This means that intent is not required – if the result is differential treatment, it might be considered discrimination. In other words, a person or organization can discriminate against someone even if he or she doesn’t mean to.
There are three types of discrimination:
- Direct – may be subtle or covert
- Indirect – uses a third party (for example, using a temp agency to discriminate against a certain type of worker)
- Constructive/adverse – systemic discrimination, might not be intentional, but has an adverse impact on members of that group
The OHRC Human Rights 101 learning module has useful overview information and examples of discrimination.
Structure of the Ontario Human Rights System:
Ontario’s Human Rights system is made up of three separate organizations.
Each organization has a different role:
- Ontario Human Rights Commission: Develops policies, provides public education, monitoring and community outreach, and initiates or intervenes in inquiries. Deals with the “responsibilities” side of human rights.
- Human Rights Legal Support Centre: The Centre can help you file an application and may represent you at the Tribunal. Deals with the “rights” side of human rights.
- Human Rights Tribunal of Ontario: Deals with complaints.
Ontario Human Rights Code and Employment
Much of Maytree’s work focuses on the integration of skilled immigrants into the Canadian labour market. Do you know how the Ontario Human Rights Code applies to skilled immigrants and temporary foreign workers in Ontario?
What aspects of employment does the Code cover?
The Code covers all stages of employment processes and practices (recruiting, hiring, promotion, etc.).
Which employers does the Ontario Human Rights Code cover?
The Code covers all employers in Ontario – except for federally-regulated employers, which are covered by Canadian Human Rights Code.
An employer cannot contract out their responsibilities – temp agencies and head-hunters must also abide by the Code.
Are temporary foreign workers in Ontario covered by the Code?
What is discrimination in employment?
Discrimination means not assessing an individual’s unique merits, capacities and circumstances.
What could be considered systemic discrimination in employment?
Policies, practices and patterns of behaviour and attitudes (including organizational culture) can be considered discriminatory.
Factors that create barriers to achievement or opportunity, and are not bona fide requirements, may be discriminatory. They might not appear openly discriminatory, but have the effect of discriminating against members of a protected group. For example, if promotion practices based on the organizational culture and experiences of white managers result in lower numbers of racialized people promoted to leadership roles, this might be discrimination.
How do you determine what is a bona fide requirement of the job?
The Code uses a high standard to determine bona fide requirements. A bona fide requirement must be:
- Adopted for a purpose rationally connected to the job function; and
- Adopted in good faith; and
- Reasonably necessary.
What does the OHRC recommend to avoid discrimination in hiring?
The Commission recommends basing hiring decisions on tests, rather than on interview questions.
From the Ontario Human Rights Commission:
- Human Rights 101 – a self-directed online learning module
- Brochures, fact sheets and guides
- Policies and guidelines
- Guide to your rights and responsibilities under the Human Rights Code
- Guidelines on developing human rights policies and procedures
- What You Can and Can’t Ask In an Interview: hireimmigrants.ca has useful resources about recruiting, retaining and promoting skilled immigrants in your business.
- Your Legal Rights: Valuable human rights and legal information. You can view the site’s human rights resources by sub-topic, including employment. The site has useful, curated, clear language information created by authoritative legal organizations across Ontario.
- Canadian Human Rights Commission: Find information about human rights for federally-regulated employers and other areas under federal jurisdiction.