The Human Rights Code in the Workplace
Written by Jennifer Miller | Curriculum Development Coordinator
In Ontario, employers are bound by certain legislation including, but not limited to, the Employment Standard Act, the Ontario Human Rights Code, the Ontario Occupational Health and Safety Act and Regulations, a collective bargaining agreement if applicable, and any other employment contracts in force. Under the Ontario Human Rights code, Canadians are protected from discrimination based on:
- Race, colour, ancestry
- Creed or religion
- Place of origin or ethnic origin
- Sex including pregnancy and gender identify
- Sexual orientation
- Marital or family status
- Receipt of public assistance
The Human Rights Code protects all Canadians from discrimination based on one or any combination of any of the above grounds. These grounds are known as prohibited grounds or protected grounds. Because the Human Rights Code applies to all Canadians, it means that all Canadian workers are protected.
Human Rights in the Workplace
Canadian employers are bound by human rights legislation protecting all Canadians, including those under their employ. That means that hiring practices, workplace policies and procedures, treatment of staff and coworkers, or anything else, cannot discriminate against any of the protected grounds. This includes refusing to employ, refusing to continue to employ, or treating a worker unfairly because they identify with one or more prohibited ground.
What is Discrimination?
Discrimination takes many forms. The most obvious, easy to identify, and easy to prove is blatant, overt discrimination. This form of discrimination is intentional. The perpetrator chooses to discriminate based on a bias or negative attitude. An example of this would be not accepting resumes from members of a certain ethnic group, or not hiring women in the typical child-bearing age groups because you don’t want to hire anyone who might get pregnant.
Most discrimination is not as easy to identify. Sometimes, discrimination – even intentional discrimination – hides in policies or practices. Intentional discrimination that is more hidden might be found in a performance review that was skewed based on a prohibited ground, or a hiring practice that is purposely not inclusive, but not obviously discriminatory. However, most of the time, this type of discrimination is unintentional. A building that isn’t accessible automatically disqualifies job candidates in wheelchairs without necessarily meaning to. A company that institutes a strict punishment for going over a set number of sick days may be discriminating against workers with family status without being aware that this is, indeed, discrimination.
Where Discrimination and Health and Safety Intersect
Sometimes, the line between a healthy and safe workplace and discrimination is unclear. Take the following under consideration: a construction site has some loose and fixed overhead hazards, such as shelving that could strike a worker’s head if they walk into it, or objects that may fall from above and hit a worker’s head. For this reason, and in following with legislation, it is mandatory that hard hats be worn on the site at all times – so, what about an employee that wears a turban for religious observances? Should he or she be allowed to enter the site without a hard hat? It depends on whether or not the hard hat is found to be a bona fide work requirement.
The Concept of Bona Fide Work Requirements
Where the line between health and safety and discrimination is unclear, it often comes down to determining bona fide work requirements.
The Ontario Human Rights Commission states the following about determining bona fide work requirements:
“To be upheld as non-discriminatory, or a bona fide (bona fide means “good faith” or “genuine”) occupational requirement, an employer must show that the standard, factor, requirement or rule:
- was adopted for a purpose or goal that is rationally connected to the function being performed
- was adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal
- is reasonably necessary to accomplish its purpose or goal, because it is not possible to accommodate the person without undue hardship.”
An airline likely has a requirement that pilots are not blind. Blindness is a disability, and so under Human Rights legislation, it is discriminatory to have sight listed as a job requirement for pilots. However, sight qualifies as a bona fide work requirement. Discrimination against the blind, in this instance, is justified. Sight is necessary to fulfill the purpose or goal being performed.
How about the same blind applicant, applying for a job as a grocery store cashier instead of an airline? Where accommodation up to the point of undue hardship can be made, employers are prohibited from discriminating. This may include making accommodations such as adding braille buttons to cash registers. Undue hardship is the point at which accommodating an employee requires an action significantly difficult, expensive, or disruptive to the nature of the business. Any employer accused of discrimination must be able to prove that they made every effort to accommodate the worker up to that point.
A Fair and Respectful Workplace for All
To keep your workplace free of discriminatory behaviours, try the following strategies:
Create and Follow Job Descriptions
One of the most solid foundations for a fair and respectful workplace is to have a set of job descriptions created by your HR team or outside specialists.
The more training and information available to workers, the more prepared they are to handle diversity in the workplace.
Use a Standard Set of Questions for Interviews
This does not mean that no follow-up questions or questions based on the candidate’s specific resume or work history can be asked, but preparing a standard set of questions to accompany individual question will ensure fair hiring practices.
New ideas, fresh talent, and different ways of considering persistent problems are just a few of the many benefits that bringing a new perspective on board can offer. Take advantage of this.
Respond to Complaints Quickly and Professionally
Ensure that your HR team and management team are prepared to deal with any discrimination claims that may be filed.
Future Trends for Human Rights and Health and Safety in Canada
The Human Rights Code is challenged on the working landscape every day. Although it was intended to protect Canadians from mistreatment, it is sometimes too loosely interpreted, and employers find themselves in difficult situations, trying to determine where the line between human rights and the right safe work is drawn. One example of the ever-evolving human rights/safe work landscape is the increased use of medicinal marijuana in the workplace. Another debate is emerging about the rights of Canadians to wear religious dress like turbans, nose jewellery, or burkas, even where those garments may pose health hazards such as not being able to fit appropriate head protection over top, having jewellery on during food prep activities, or having the end of a burka get tangled in a machine on a shop floor. As Canada’s multi-cultural identity continues to form and grow, so too does the need for diverse and creative solutions to issues.
As seen in our February Be Safe Newsletter
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