Check-In - Week 4 - Human Rights Law Part I (2)
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Employment and Human Rights Law - Check-in - Lesson Four – Human Rights Law Part I 1.
Ontario’s human rights legislation is considered to be remedial – what does this mean? This means that Ontario’s human rights legislation, namely the Human Rights Code, aims to prevent and remedy discrimination and harassment based on prohibited grounds, such as race, sex, age, religion, in the context of employment, accommodation
and publicly available services.
The Code also seeks to promote the dignity, equality, and inclusion of all people in Ontario
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.
The Code empowers human rights tribunals to order various remedies, such as the ones
you listed, to address the harm caused by the violation and to prevent future occurrences.
These remedies are intended to restore the victim of discrimination or harassment to the position they would have been in if the violation had not occurred, and to deter the violator from repeating the conduct
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. Some examples of these remedies are:
Pay compensation to the employee for actual lost earnings: This remedy compensates the employee for the income they lost as a result of the discrimination or harassment, such as wages, benefits, bonuses, or commissions.
Pay compensation to the employee for injury to dignity, feelings, and self-
respect: This remedy compensates the employee for the non-pecuniary damages
they suffered as a result of the discrimination or harassment, such as humiliation,
pain, suffering, or loss of self-esteem.
Pay the employee’s legal costs: This remedy reimburses the employee for the reasonable expenses they incurred in pursuing their human rights claim, such as legal fees, expert fees, or travel costs.
Hire or reinstate the employee: This remedy requires the employer to offer the employee a job or to restore the employee to their former position, if the employee was denied employment or dismissed because of the discrimination or harassment.
Undertake staff training, such as in cross-cultural communication or sexual harassment: This remedy requires the employer to provide education or awareness programs for their staff on human rights issues, such as diversity, equity, or respect in the workplace.
Implement an anti-harassment policy: This remedy requires the employer to adopt and enforce a policy that prohibits discrimination and harassment in the workplace, and that provides a mechanism for reporting and resolving complaints.
These are some of the possible remedies that a human rights tribunal can order under the Code.
However, the tribunal has broad discretion and may order any other remedy that it considers appropriate and just in the circumstances
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. Therefore, it is important for both parties to comply with the Code and to respect the human rights of others
2.
What are the fives areas that everyone has the right to be free of discrimination in? According to the Ontario Human Rights Code, everyone has the right to be free from discrimination in five parts of society, called social areas.
They are
1
:
Employment
: This includes hiring, firing, promotion, training, wages, benefits, and working conditions.
Housing
: This includes renting, buying, or selling a place to live, as well as the terms and conditions of the lease or contract.
Services, goods, and facilities
: This includes schools, hospitals, shops, restaurants, sports and recreation organizations and facilities, and any other public or private service or facility that is available to the public.
Unions and vocational associations
: This includes membership, participation,
and representation in any trade union, professional association, or occupational group.
Contracts
: This includes any agreement between two or more parties that creates legal obligations, such as a sales contract, a loan agreement, or a lease.
These are the five social areas where the Code protects people from discrimination based on 17 different personal attributes, called grounds, such as race, sex, disability, or age
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.
If you experience or witness discrimination in any of these areas, you can file a human rights claim with the Human Rights Tribunal of Ontario
2
.
3.
Explain the Meiorin
test.
The Meiorin test is a three-step test that determines whether a discriminatory standard or requirement can be justified as a bona fide occupational requirement (BFOR). A BFOR
is a legitimate and reasonable requirement that is necessary for the performance of a specific job or task.
The Meiorin test was established by the Supreme Court of Canada in
the case of British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees’ Union
1
, also known as Meiorin for short.
The test is as follows
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:
The employer must show that the standard or requirement was adopted for a purpose or goal that is rationally connected to the function or nature of the job or
task.
The employer must show that the standard or requirement was adopted in an honest and good-faith belief that it was necessary to fulfill the purpose or goal.
The employer must show that the standard or requirement is reasonably necessary to accomplish the purpose or goal, and that it is impossible to accommodate the affected group or individual without imposing undue hardship on the employer.
The Meiorin test applies to all claims of discrimination under human rights legislation, and it requires employers and other organizations to accommodate the characteristics
of affected groups or individuals within their standards or requirements, unless it would cause undue hardship.
The test also eliminates the distinction between direct and adverse effect discrimination, and adopts a unified and flexible approach to assessing the validity and enforceability of discriminatory standards or requirements
4.How is “creed” treated as a prohibited ground of discrimination under the
Code
?
Creed is a term that covers various forms of religious and non-religious beliefs and practices that influence a person’s identity, worldview, and way of life. Creed is one of the 17 grounds of discrimination that are prohibited under the Ontario Human Rights Code (the Code).
This means that everyone has the right to be free from discrimination and harassment based on their creed in the areas of employment, housing, services, contracts, and unions
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.
The Code also requires that people’s creed be accommodated to
the point of undue hardship, unless there is a bona fide and reasonable justification for not doing so
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.
The Code does not define creed, but it is interpreted broadly and flexibly, taking into account the evolving nature and diversity of beliefs and practices in Ontario
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.
5.What are three areas of discrimination not covered by the Code
?
You are correct. Language, physical appearance, and political opinion
are three areas of discrimination that are not covered by the Ontario Human Rights Code (the Code). The Code does not explicitly protect people from discrimination based on these factors, unless they are related to another protected ground, such as creed, race, or disability. However, this does not mean that people who experience discrimination in these areas have no legal recourse. They may be able to file a complaint under other laws or policies, or seek a remedy through civil litigation or alternative dispute resolution.
Political affiliation
: This is the association or identification with a political party,
ideology, or movement.
The Code does not explicitly protect people from discrimination based on their political views or activities, unless they are related to another protected ground, such as creed or ethnic origin
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.
Physical appearance
: This is the outward appearance or attractiveness of a person, such as their height, weight, hair, or clothing.
The Code does not explicitly protect people from discrimination based on their physical appearance, unless it is related to another protected ground, such as disability, sex, or race
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6.What must be considered when employers advertise for a new position?
When employers advertise for a new position, they must consider several factors, such as:
The purpose and goal of the position, and the skills and qualifications required for
it.
The best methods and channels to reach the target audience and attract qualified candidates.
The legal and ethical implications of the advertisement, and the compliance with human rights and employment laws and policies.
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The clarity and accuracy of the advertisement, and the avoidance of any misleading or discriminatory statements or terms.
Some tips for advertising jobs effectively and fairly are
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:
Use an employee referral program to leverage the existing network and reputation of the staff.
Write effective job descriptions that highlight the benefits and expectations of the role and the organization.
Hire a professional recruiter to assist with the hiring process and provide expertise and guidance.
Consider using a sponsored ad to boost the visibility and reach of the advertisement on online platforms.
Make a promotional video to showcase the culture and values of the organization
and the role.
Employers should also be aware of the areas of discrimination that are not covered by the Ontario Human Rights Code, such as language, physical appearance, and political opinion
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. These factors should not be used as criteria for hiring or rejecting candidates, unless they are related to another protected ground or a bona fide occupational requirement.
Employers should also be prepared to accommodate the needs of candidates based on their creed, disability, or other grounds, unless it would cause undue hardship
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.
7.
How is drug and alcohol-testing treated with respect to discrimination at the hiring stage?
Drug and alcohol testing at the hiring stage may be considered a form of discrimination
based on disability or perceived disability under the Ontario Human Rights Code. The Code prohibits employers from discriminating against applicants or employees based on
their actual or assumed dependence on drugs or alcohol, unless the employer can show that the testing is a bona fide occupational requirement (BFOR).
A BFOR is a legitimate and reasonable requirement that is necessary for the performance of a specific job or task
1
.
To justify drug and alcohol testing as a BFOR, the employer must satisfy the three-step Meiorin test, which requires the employer to show that
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:
The testing was adopted for a purpose or goal that is rationally connected to the function or nature of the job or task.
The testing was adopted in an honest and good-faith belief that it was necessary to fulfill the purpose or goal.
The testing is reasonably necessary to accomplish the purpose or goal, and that it is impossible to accommodate the affected group or individual without imposing undue hardship on the employer.
The employer must also comply with the duty to accommodate, which means that the employer must make efforts to adjust the workplace or the job requirements to the needs of the applicant or employee based on their creed, disability, or other grounds, unless it would cause undue hardship.
The duty to accommodate may include providing alternative forms of testing, modifying the work schedule, or offering treatment or counselling programs
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.
Therefore, drug and alcohol testing at the hiring stage is not prohibited per se, but it must be justified by the employer as a BFOR and be consistent with the duty to accommodate. Otherwise, it may be challenged as a discriminatory practice under the Code.
7.