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831 Personal characteristics and illegal discrimination Human rights laws are concerned with preventing and ending harassment and illegal discrimination. Discrimination is illegal when it is based on irrelevant personal characteristics. These characteristics are called prohibited grounds of discrimination. There are 15 prohibited grounds of discrimination listed in the Ontario Human Rights Code.
- Race, Ancestry, Place of Origin, Colour, Ethnic Origin and CitizenshipThe following 6 prohibited grounds, are often thought of together. They are: 1) race, 2) ancestry, 3) place of origin, 4) colour, 5) ethnic origin and 6) citizenship. These terms are often used interchangeably to refer to a person's race or origin but each has its own distinct meaning. Examples of illegal discrimination and harassment may include racial remarks or graffiti in the workplace, explicit or covert policies not to hire or promote certain groups, and refusals to rent or do business with certain ethnic groups or communities. Human rights tribunals have also recognized that discrimination based on language, accent, dress, food or cultural habits may fall within one or more of the above prohibited grounds.
- Religion or CreedDiscrimination or harassment based on religion, creed or spiritual belief is also prohibited. The religion or spiritual belief does not necessarily have to be well organized or from the Christian, Jewish, Muslim or Hindu tradition. Religious discrimination often arises where authorities fail to accommodate a person's religious observance needs or practices, such as wearing religious clothing or abstaining from work on a religious holiday. The law holds that imposing the same rules or laws on everyone may constitute discrimination.
- Sex or genderAnother prohibited ground is sex or gender. Sex or gender discrimination and harassment takes many forms including failure to hire or promote women in employment, termination of pregnant employees, sexual harassment in the workplace, refusal to allow men or women to engage in activities or professions traditionally dominated by the other sex, refusal to serve a breastfeeding patron, and difference in pay for work of equal value.
For more information about sexual harassment, refer to the sexual harassment heading under Employment Law.
- AgeDiscrimination based on age can also be illegal. Age has a special meaning in the Human Rights Code and is generally defined as between 18 and 65. It is not illegal, therefore, to discriminate in employment related matters for those older than 65 or younger than 18.
- Handicap or DisabilityDisability is also a prohibited ground. Disability or handicap is broadly defined to mean any degree of physical disability, mental retardation, learning disability, mental disorder or injury associated with workers' compensation, including the perception of such disability. Generally, the disability must be of some permanence to qualify. A minor cold, flu, or headache would not be considered a disability.
Disability complaints may arise in employment where an employer either refuses to hire a disabled person or refuses to accommodate the disabled employee's needs. An employer is required to accommodate the needs up to the point of "undue hardship". There is no formula for determining undue hardship, however, undue hardship may occur where the health and safety of workers, or the operational requirements of the business are compromised by the accommodation request. Business inconvenience is not considered a valid reason for refusing to accommodate.
Varying degrees of the duty to accommodate disabled persons are similarly imposed on landlords in the area of accommodation, and businesses in the provision of goods, services and facilities.
- Sexual orientationHuman rights laws also prohibit discrimination and harassment against gays, lesbians, bisexuals and transgendered persons, and in some cases, their partners and children.
Recently in Ontario, new laws have been introduced under the Family Law Act which affect same sex couples. What specific effect these new laws may have on existing sexual orientation and marital and family status human rights laws, is yet to be determined.
Unequal treatment due to HIV and AIDS is generally considered discrimination on the basis of disability, although it may also constitute discrimination on the basis of sexual orientation.
- Marital and family statusMarital status and family status are also prohibited grounds. Marital status means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage.
Family status means the status of being in a parent and child relationship.
- Criminal record or receiving public assistanceIn some cases, having a criminal record or receiving public assistance , such as family benefits, can also be considered prohibited grounds of discrimination.
- Perceived characteristicsSometimes, the perception of these characteristics is just as important as the reality. Accordingly, human rights laws may be applicable to those situations where someone is discriminated against or harassed simply because they are perceived to be of a certain race, disability, and so on.
Also, there may be situations where the discrimination and harassment is not specifically related to a prohibited ground, for example, race, but it is so closely identified with it, such as by a person's accent, that human rights laws are applicable. It may also be that the discrimination is experienced on different and multiple levels. For example, a disabled woman of colour may be discriminated against on the basis of race, disability and / or sex. It is important therefore not to dismiss a human rights concern just because is does not fit squarely within one of the listed grounds of discrimination.
For further information or advice, you can contact the Ontario Human Rights Commission listed on the Legal Line Guide and website. For legal advice, you should consult a lawyer.