Introduction to the Ontario Human Rights Code

Introduction to the Ontario Human Rights Code Fall 2008

PREAMBLE • The preamble is the most important element of the Ontario Human Rights Code. • - Identifies international obligations • - Establishes that human rights protections are public policy • - Recognizes the dignity and worth of • every person

The Preamble states: • WHEREAS recognition of the inherent dignity and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations.

… • AND WHEREAS it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to the law,

… • and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a party of the community and able to contribute fully to the development and well-being of the community and the Province;

Parts I and II of the Code • Part I • Freedom from Discrimination • Sections 1 – 9 • social areas, grounds of discrimination • Part II • Interpretation and Application • section 10 – definitions sections 14 – 24 – exceptions to the Code

Prima Facie Complaint • Social Area + Ground (s) • Complaint

Social Areas • Section 1: Services • Section 2: Accommodation • Section 3: Contracts • Section 4: Accommodation of persons under 18 • Section 5: Employment • Section 6: Vocational Associations

Right to equal treatment without discrimination • Every person has a right to equal treatment with respect to services, goods and facilities, accommodation, contracts, employment and vocational associations without discrimination because of … (grounds)

shops theatres restaurants taverns gas stations education/training programs in schools universities etc. hospitals insurance companies 1. Services, goods, facilities

rental and commercial accommodation granting of accommodation amount of rent security deposits rules and regulations termination of a lease eviction 2. Accommodation

3. Contracts • oral or written contract • includes the making / acceptance or rejection of an offer • independent contractors / sub-contractors • contract for purchase of a house or condominium etc. • contract for purchase of commercial accommodation, office/retail space • contract of insurance etc.

Section 4(1) Is a sixteen or seventeen year old person Is no longer under parental control Accommodation of persons under 18

5. Employment • covers all aspects related to employment including: • recruitment, interviews, application forms • hiring, training • transfers, promotion • apprenticeship terms • dismissals • layoffs • government contracts

6. Membership in Vocational Associations • trade unions • self-governing professions • employers’ organizations • management organizations

Restaurant, library or community centre Walking down the street A promotion The union won’t send you on assignments because he thinks your English is poor Services, goods and facilities No Employment Vocational Association Do these fall under a “social area”?

Grounds of DiscriminationServices / Accommodation / Employment* - race - ancestry - place of origin - colour - ethnic origin - citizenship • - creed • - sex (pregnancy) - sexual orientation • - age (18 & over in employment) - marital status - family status • - disability • - reprisal

Grounds of Discriminationspecific grounds • GROUNDS • receipt of public • age (18 to 65) • record of offences • SOCIAL AREA • Accommodation only • Employment only • Employment only

Introduction to the Ontario Human Rights Code • Part II Definitions- section 10 -

“Age” Is defined to mean 18 years or more except: • in employment (18 - 65); • contracts for accommodation (aged 16 and have withdrawn from parental control s. 4(2)) • Includes: (i) Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury , birth defect or illness. (ii) a condition of mental retardation or impairment

“Because of Disability” (iii) a learning disability, or a dysfunction in one or more processes involved in understanding or using symbols or spoken language; (iv) a mental disorder; (v) an injury or disability for which benefits were claimed under the Workers’ Compensation Act

“Because of Disability” Ability to perform essential duties and requirements: • right to non-discrimination not infringed if person is incapable of fulfilling the essential duties or requirements of the position (s. 17 (1)) • essential duties are duties that are necessary for the use of services, accommodation,or the performance of a job

“Because of Disability” Accommodation short of undue hardship: • the employer, landlord, service provider must accommodate this person’s needs, short of undue hardship, considering the cost, any outside sources of funding and health and safety requirements • See the Policy and Guidelines on Disability and the Duty to Accommodate

“Harassment” means… • … engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

“Harassment” • .. a course of .. : usually more than one incident • … vexatious comment ...: what is said • … or conduct ...: actions (e.g. touching), gestures (e.g. leering), posting of materials, graffiti etc.

“Harassment” is specifically covered … • In accommodation: landlords, people acting for landlords (s. 2(2)) • in employment: employers, people acting for employers, co-workers (s.5(2))

Harassment because of Sex • Section 7(1): Harassment because of sex in accommodation • Section 7(2): Harassment because of sex in Workplaces • Section 7(3): Sexual solicitation by a perso in position to confer benefit, etc.

Marital Status • married • single • widowed • divorced • separated • living with a person of the opposite sex in a conjugal relationship outside of marriage

Record of Offences • employment only • person who has been convicted of an offence under an Ontario statute, or • who has been convicted of a federal offence for which a pardon has been granted

Spouse • Code definition: the person to whom a person of the opposite sex is married or with whom the person is living in a conjugal relationship outside marriage • Dwyer and Simms; Leshner: “same-sex”

Exceptions Section 14: Special Programs Section 16: (Canadian citizenship) Section 18: a religious philanthropic, education, fraternal or social organizations such a seniors club, serves the special interests of persons Section 21: Shared accommodation Section 22: Insurance contracts Section 24: Special employment

Complaints • Include the Social Area • Include the ground (s) • Include ALL the relevant Code provisions (I.e. sections of the Code) AND section 9 • Is harassment involved? • Is there reprisal?

Specific Provisions of the Code Infringement prohibited • 9.No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Direct Indirect Constructive (s. 11) Systemic Because of (s. 12) association Reprisal (s. 9) Announced intent s. 13 Perception Harassment Poisoned environment Types of discrimination

The apartment manager won’t rent to a pregnant woman The factory manager fires you because he doesn’t like your accent The Chief Engineer who is from China won’t hire engineers from Taiwan Accommodation / sex, family status Employment / language – country of origin, ethnic origin Employment / place of origin, ancestry Are these prima facie complaints?

Introduction to the Ontario Human Rights Code