Area of Law: Human Rights
Answer # 831
Personal characteristics and illegal discriminationRegion: Ontario Answer # 831
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 citizenship
The following six 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 creed
Discrimination 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 gender
Another prohibited ground is sex or gender, which includes persons who are transgender, trans-sexual or inter-sexed. 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.
Discrimination based on age can also be illegal. Ontario’s Human Rights Code protects anyone aged 18 and over against discrimination in employment on the basis of their age. Specifically, the Code prohibits mandatory retirement, protecting employees aged 65 or more from being forced to retire, except in those cases where the retirement age can be justified as a “bona fide occupational requirement”. A bona fide occupational requirement is an employment requirement or qualification that is necessary because of the nature of the employment.
As well, in 2012, amendments to the Canadian Human Rights Act and the Canada Labour Code were brought into force to prohibit federally regulated employers from setting a mandatory retirement age, again, unless there is a bona fide occupational requirement.
Handicap or disability
Disability is also a prohibited ground. In the Code, the term disability is defined very broadly, and includes:
- any degree of physical disability caused by injury, birth defect or illness (such as infirmity, disfigurement, malformation)
- mental impairment or a developmental disability,
- mental disorder, or
- an injury or disability associated with a workers’ compensation claim, 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 people are similarly imposed on landlords in the area of accommodation, and businesses in the provision of goods, services and facilities.
Human rights laws also prohibit discrimination and harassment on the basis of sexual orientation, such as those who are gay, lesbian, bisexual or heterosexual, and in some cases, their partners and children.
In 2005, with the enactment of the Civil Marriage Act, Canada became the fourth country in the world to legalize same-sex marriage nationwide, giving same-sex couples many of the same legal and financial benefits as married opposite-sex couples. In addition, Ontario’s Family Law Act, defines a marriage as between “two persons”, as well as spouses being “two persons”. Therefore, same-sex couples are entitled to the same rights as opposite-sex couples. This includes the right to marry, the right to divorce, and the right to raise families. Furthermore, same-sex couples who were legally married, but wish to get a divorce, also have the same rights as opposite-sex married couples to spousal support, child support, and property division.
In the workplace, the Ontario Human Rights Code makes it discriminatory to deny benefits to an employee’s partner or spouse based on sexual orientation. This means that same-sex couples have the same rights as opposite-sex couples to employment benefits such as group insurance, health coverage and pension benefits.
Marital and family status
Marital 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 in a conjugal relationship outside marriage.
Family status means the status of being in a parent and child relationship.
Criminal record or receiving public assistance
In some cases, having a criminal record or receiving public assistance, such as family benefits, can also be considered prohibited grounds of discrimination.
Sometimes, 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 it does not fit squarely within one of the listed grounds of discrimination.
Warning, for employment and housing purposes, it is legal to discriminate against someone who has a criminal record. To prevent discrimination, erase your criminal record, call toll-free 1-877-219-1644 or learn more at Federal Pardon Waiver Services. It’s easier than you think.
If you need help filing a human rights complaint with the Human Rights Tribunal of Ontario (HRTO), or with other Court proceedings, contact our preferred experts, George Brown Professional Corporation .
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