Discrimination in the Workplace: Understanding Ontario's Human Rights Code

Answer to Part 1
Introduction
One of the major concern in the field of human rights today is discrimination.
Discrimination is recognised as an intentional act of exclusion as well as an unintentional or
hidden acts. The Ontario Human Rights Commission is dedicated for eliminating the
discrimination from the society by providing the residents of Ontario with effective
leadership and quality services, to effectively enforce the Ontario Human Rights Code, and to
ensure and promote human rights (Ohrc.On.Ca, 2018). The issue of discrimination is
emerging in the society not only in the field of work but also in the general life.
Discrimination may take place even in such situation where any harm was not intended.
Discrimination may result from the tendency to create the society, though everyone has the
same power as a person. Failure to consider some perceptions and not inclusion of all people
may result in a barrier for access, which though unintended, may be discrimination.
The law
The Ontario Human Rights Code requires that an employer maintain a workplace
which is free from discrimination. Discrimination may be constructive or systematic. Section
11 of the Ontario Human Rights Code states that constructive discrimination is the
requirement, factor or qualification, which is not referred to as a discrimination on a
prohibited ground but the same results in the restriction, preference or exclusion of a
particular person or group of person who are recognised by a ground of discrimination which
is prohibited unless the ground is exempted. Systemic discrimination is recognised as one of
the complex forms of discrimination. It refers to those policies or practices which seem to be
neutral from their surface and still have discriminatory impacts on the people on the basis of
one or more grounds of the code. There is a three part test to determine a discriminatory rule
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which was found in the Meiorin decision. The test requires the employer to demonstrate the
existence of a rational connection within the purpose of introducing the standard and the
requirement of that job. The employer should reasonably show that the standard was set up in
a good faith and honest belief and it was mandatory for the performance required for that job
role. The test also requires that the employer should establish that the set standard was
extremely necessary to achieve the legitimate work purpose. The employer cannot establish a
standard for workplace on the basis of a perceived norm and then make an exception for the
individuals who fails to satisfy the standard.
Section 1 of the Code provides that every person has the right to receive equal
treatment in respect of goods, services and other facilities without any discrimination of race,
colour, sex, religion, age, marital or family status or origin. Section 10 of the OHRC
recognises HIV and AIDS as a disability and discrimination should not be made in the
workplace on such basis. The code under Section 12 provides that discrimination should not
be made on the basis of association. Human right is infringed when a person is discriminated
on the basis of an association or relationship with a person identified by certain prohibited
ground of discrimination. Section 9 of the Ontario Human Rights Code provides that any
right protected under this Code shall not be, directly or indirectly, infringed by any person. In
the case of Harriott v. National Money Mart, 2010 HRTO 35, a Muslim employee faced
discrimination and called by various name in his workplace after the incident of 9/11. The
Code provides that no such discrimination should be made on the basis of religion.
Legal duties or obligations of employers
It is required that the employers should create and maintain a workplace that is free
from any kind of discrimination. They are expected to provide or create and environment in
the workplace where the human rights are protected and respected and employees are
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provided with equal opportunities. One of the major duty of the employers are the duty to
accommodate. Employers should accept a request for accommodation, investigate solutions,
maintain the confidentiality and should provide with explanation when a request would cause
an undue hardship. In the case of Hydro-Quebec v Sydicat des emoployees de techniques
professionnelles et de bu reau d’Hydro-Quebec, section locale 2000 (SCFP-FTQ), 2008 SCC
43, it was defined by the Court that undue hardship does not refer to impossibility. The other
obligations of the employers are to obtain an expert opinion in case if it is required. They
should investigate the alternative approaches and limit the requests for information to those
reasonably related to the nature of the restriction or limitation. It is the obligation of the
employer to bear the expenses of acquiring the required medical information. However,
discrimination in workplace is allowed in special service organisations and bona fide
occupational qualification (Ghumman et al., 2013). The Code further provides that
discrimination is allowed in employing a person in home medical and personal care. The duty
of accommodation is not imposed in such cases upon the employers.
Conclusion
The potential employer liability shall be minimised by adopting some practices in
compliance with Ontario Human Rights Code. To ensure a workplace free from any
discrimination, there should be timely inspection of the incidents of discrimination. The
employees and other people involved in the workplace should be able to identify and
understand discrimination. A pre-determined and well-designed internal policies would help
to determine and resolve a concern in a simple way. A transparent and structured process
should be maintain to resolve any complaint for discrimination. The company should ensure
that all of its activities are in compliance with the Ontario Human Rights Code and the same
should be applied while investigating allegations.
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