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Chapter 5 - Human Rights Issues - Duty To Accommodate
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Chapter 5 - Human Rights Issues - Duty To Accommodate
Chapter 5 - Human Rights Issues - Duty To Accommodate
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Chapter 5 — Human Rights Issues: Duty to Accommodate,
Harassment, Accessibility Standards
What Constitutes Discrimination?
● D iscrimination —treating a person or group differently or negatively, based on a
prohibited ground of discrimination under the Human Rights Code — The term
discrimination is not defined in the Code.
● Initially the courts interpreted it to mean an intentional act of exclusion—for example, the
placement of an advertisement specifying that individuals of a certain ethnic background
need not apply. This behaviour is known as direct discrimination and is easy to identify.
dverse impact discrimination —unintentional discriminationthat has an adverse effect on
A
members of certain groups (also known asconstructivediscrimination). — these acts of
discrimination are often hidden or unintentional — For example, the weight and height
restrictions formerly attached to some jobs, such as firefighter and police officer, often had an
adverse impact on women and members of certain ethnic groups who, on average, were unable
to meet those “job requirements.”
onstructive discrimination —unintentional discriminationthat has an adverse effect on
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members of certain groups — In 1985, the Ontario government amended the Code to expressly
include the notion of constructive discrimination.
uman Rights Code :
H
{Constructive discrimination
11 (1)A right of a person under Part I is infringedwhere a requirement, qualification or factor
exists that is not discrimination on a prohibited ground but that results in the exclusion,
restriction or preference of a group of persons who are identified by a prohibited ground of
discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground
is not an infringement of a right. R.S.O. 1990, c. H.19, s. 11 (1).
( 2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable
and bona fide in the circumstances unless it is satisfied that the needs of the group of which the
person is a member cannot be accommodated without undue hardship on the person
responsible for accommodating those needs, considering the cost, outside sources of funding, if
any, and health and safety requirements, if any. R.S.O. 1990, c. H.19, s. 11 (2); 1994, c. 27, s.
65 (1); 2002, c. 18, Sched. C, s. 2 (1); 2009, c. 33, Sched. 2, s. 35(1).}
ection 11(Constructive Discrimination)provides that a rule that results in discrimination
S
infringes the Code unless it is abona fide occupationalqualification or requirement(BFOQ
or BFOR) or it falls within one of the limited exemptions — The section further states that a rule
or qualification will not be considered a BFOR unless it is shown that the needs of that person or
group cannot be accommodated without imposing undue hardship on the employer.
● O
ver time, the idea evolved that employers have aduty to accommodatepeople
affected by this form of discrimination — Thus, even where a job requirement is justifiable,
if it affects certain individuals or groups adversely and touches on a prohibited ground of
discrimination, an employer has an obligation to accommodate that employee or group if
possible — it requires the employer to modify the rule for those negatively affected unless
doing so would create undue hardship for the employer.
ndue hardship —difficulty exceeding that which anemployer is required to endure when
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accommodating the needs of an individual or a protected group under the Human Rights Code;
defined in the Ontario Human Rights Commission’s policy as the point when accommodation
would alter the essential nature of an enterprise, substantially affect the economic viability of an
enterprise, or produce a substantial health and safety risk that outweighs the benefit of
accommodating group or individual worker.
● T
hus, the duty to accommodate is now an integral part of an employer’s obligations under
the Code — Although the duty can arise on several grounds, it is most likely to arise in the
case of an employee with a disability — Theduty to accommodate for disabilityis
specifically covered insection 17of the Code.
uman Rights Code :
H
{Disability
17 (1)A right of a person under this Act is not infringedfor the reason only that the person is
incapable of performing or fulfilling the essential duties or requirements attending the exercise of
the right because of disability. R.S.O. 1990, c. H.19, s. 17 (1); 2001, c. 32,s. 27 (5).
Accommodation
(2)No tribunal or court shall find a person incapableunless it is satisfied that the needs of the
person cannot be accommodated without undue hardship on the person responsible for
accommodating those needs, considering the cost, outside sources of funding, if any, and health
and safety requirements, if any. R.S.O. 1990, c. H.19, s. 17 (2); 1994, c. 27, s. 65 (2); 2002, c.
18, Sched. C, s. 3 (1); 2006,c. 30, s. 2 (1).
Determining if undue hardship
(3)In determining for the purposes of subsection(2) whether there would be undue hardship, a
tribunal or court shall consider any standards prescribed by the regulations. 2006, c. 30, s. 2
(2).}
The Meiorin case :
● In1999, the Supreme Court of Canada further broadened the scope of prohibited
discrimination in the watershed decision of British Columbia (Public Service Employee
Relations Commission) v BCGSEU (the Meiorin case).
● This case established a three-part test for determining when a discriminatory rule or
standard is justified —This test is the same whether the discrimination is direct or
constructive.
[ T he Supreme Court of Canada found that the rule wasdiscriminatory because Meiorin was able
to show that the aerobic requirement screened out more women than men on the basis of their
differing physical capacities. The issue was whether the discriminatory rule or standard could be
justified. Reversing previous case law, the court ruled that there should not be separate
categories of discrimination: direct and constructive. Whatever form discrimination takes, job
rules or qualifications that detrimentally affect people or groups on the basis of a prohibited
ground of discrimination should be subject to the same analysis.
To successfully defend a discriminatory standard or rule, the employer must : —
● demonstrate that a rational connection exists between the purpose for which the standard
was introduced and the objective requirements of the job;
● demonstrate that the standard was adopted in an honest and good-faith belief that it was
necessary for the performance of the job; and
● establish that the standard was reasonably necessary to accomplish that legitimate
work-related purpose. — To establish this, the employer must show that it was impossible
to accommodate employees who share the characteristics of the claimant without
imposing undue hardship on itself.]
● U nder the third part of the Meiorin test, a discriminatory standard will be found reasonably
necessary, and therefore justified, only if the employer can show that it was impossible to
accommodate the individual or group negatively affected by the rule without suffering
undue hardship.
● This is a very high standard for an employer to meet and one that requires it to
consider differing needs when setting or creating a standard or rule. (This approach
is called “inclusive design.”) — For example, in Meiorin,the employer established the
standard by looking at the aerobic capacity of its (mostly male) workforce — The
Supreme Court of Canada expressly rejected this approach, holding that an employer
cannot create a workplace rule based on a perceived norm and then be prepared to make
exceptions for individuals who cannot satisfy the rule.
● T he question of reasonable accommodation must be taken into consideration from
the beginning, as part of setting the rule or standard.
● Meiorin thus places a heavy onus on employers to ensure that the workplace is sensitive
to the needs of individuals and groups that are protected by the Code.
● As a result of Meiorin, employers now know they mustconsider employees’ special
needswhen actually designing their policies and workplacestructures.
● However, since that decision was made, some tribunals and lower courts have interpreted
this very high standard for justifying a workplace rule that isprima facie discriminatory
to mean virtual impossibility.
● In 2008 during theHydro-Quebec decision, the SupremeCourt of Canada clarified the
third part of the Meiorin test — It confirmed that the test is not whether it is impossible to
accommodate the protected individual or group, but rather whether it is impossible to do
so without undue hardship.
[However, this does not prove that a rule is a BFOR has become easy for employers — The
standard remains high—some or moderate effort is not enough—but in the right circumstances,
exclusion is permitted — The decision also underscores the bedrock principle that an exchange
of work for remuneration remains at the heart of the employment relationship.]
In Meiorin, the court suggested somefactors thatshould be consideredwhen assessing
whether the duty to accommodate has been met:
1. Did the employer investigate alternative approaches that do not have a discriminatory
effect, such as individual testing?
2. Were there valid reasons why alternative approaches were not implemented? What were
they?
3. Can the workplace accommodate different standards that reflect group or individual
differences and capabilities?
4. Can legitimate workplace objectives be met in a less discriminatory manner?
5. Does the standard ensure that the desired qualification is met without placing an undue
burden on those to whom it applies?
6. Have other parties who are obliged to assist in the search for accommodation (e.g., the
union representing an affected worker) fulfilled their roles?
The Duty to Accommodate : —
● A
ccommodation —a human rights concept that refers to making changes that allow a
person or group protected by the Human Rights Code to participate in the workplace;
most often required with respect to disability, creed, and pregnancy; for example,
accommodating a blind employee could involve providing a voice synthesizer on a
computer.
● T
he duty to accommodate has been part of an employer’s obligation under the Code for
many years — The principle that underlies the duty is the belief that it is unfair to exclude
people on the basis of a prohibited ground of discrimination because their needs are
different from those of the majority.
ccording to the Ontario Human Rights Commission’s (OHRC) 2016 Policy on ableism and
A
discrimination based on disability (including the parties’ responsibility) — the principle of
accommodation involves three factors:
● Individualization —There is no formula to determinewhen the duty to accommodate has
been satisfied. Each person’s needs are unique; a solution that meets one person’s
requirements may not meet another’s.
● Dignity —People must be accommodated in a mannerthat most respects their dignity,
including their privacy, confidentiality, comfort, and autonomy. For example, a wheelchair
entrance over the loading dock or garbage room is unacceptable.
● Integration and full participation/inclusion —Barriersshould be removed and job
requirements and workplaces must be designed with everyone in mind. An employer
cannot base systems or requirements on “normal employees” and then make exceptions
as people or groups request them.
veryone involved has a responsibility to engage in the process and consider potential
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accommodation solutions — it is a shared obligation —
● The employer has primary responsibility for initiating accommodation.
● Theparty requiring accommodationshould make hisneeds known to the employer and
supply information regarding the assistance required.
● Unionsalso have a responsibility to help find solutionswhen accommodation conflicts
with the collective agreement.
he obligations of the employer — The obligations of the individual who seeks
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accommodation — The obligations of unions—- readfrom the textbook.
What Constitutes Undue Hardship? —
nce an employee makes a prima facie case of discrimination (i.e., shows that a protected
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ground was a factor in the negative result experienced), the onus shifts to the employer to
present evidence showing that the financial cost of the accommodation—even with outside
sources of funding—or the health and safety risks would create undue hardship.
Under the Code, three factors—costs, outside sourcesof funding, and health and safety
requirements—are specifically recognized as beingrelevant to a discussion of undue hardship.
However, the Supreme Court of Canada held that there may be other relevant considerations,
provided that the difficulties they present are substantial and not merely inconvenient — which
includes the potential disruption of a collective agreement, morale problems with other
mployees, and problems relating to the interchangeability of the workforce and facilities and the
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size of the employer’s operations.
(prima facie case —a case in which the facts alleged by the plaintiff or complainant, if true,
constitute a breach of law.)
1. Costs —
● A s with all OHRC policies, the Policy on ableism and discrimination based on disability,
while not binding on the tribunal, can be or will often be taken into consideration in its
decisions and therefore is relevant.
● According to these guidelines, costs constitute undue hardship onlyif they are
quantifiable (not merely speculative), directly related to the accommodation, and
“so substantial that they would alter the essential nature of the enterprise, or so
significant that they would substantially affect its viability”(emphasis added).
● This is an extremely high standard, and most large businesses will rarely be able to meet
it.Business inconvenience and customer preferencesare not relevant
considerations.Moreover, costs arebased on the budgetof the whole organization,
not the branch or unit where the person works or has made a job application.
● At the same time, the capacity of an organization to get a loan to pay for the costs of
accommodation or to spread costs over time is relevant.
● For example, the cost of building a ramp or elevator can be spread over a number of
years, and tax write-offs and depreciation are factored in.
● The policy states thatinterim accommodationsshouldbe considered if it is necessary to
phase in long-term accommodation over an extended period of time.
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● mployers must be able to produce actual evidence of undue hardship.
● Speculative risks and conditions that may arise in the future are not valid
considerations
● Similarly, the unpredictability and extent of future disability does not affect the current duty
to accommodate.
● F inally, the availability of outside sources of funding, such asgrants, subsidies, or tax
credits, is considered.
● For example, an employer’s eligibility for tax incentives to make the workplace more
accessible is factored in when determining whether the point of undue hardship has been
reached.
● If undue hardship can still be shown, the policy states that theperson with a disability
should be given the option of providing or paying for that portion of the
accommodationthat results in undue hardship.
● The duty to accommodate requires the parties to consider each situation individually and
not apply anautomatic “rule”concerning when unduehardship has been reached.
● T
hus the general principle is that the Code’s requirements represent a “minimum” set of
rights that the workplace parties cannot contract out of.
2. Health and Safety Concerns —
● F or health and safety to constitute undue hardship, the Commission’s policy states that
the employer must show that the risks, evaluated after all accommodations have been
made to reduce them, are still serious.
● The nature, severity, probability, and scope of risk are all relevant considerations.
● If the potential harm is minor and unlikely to occur, the risk is not considered serious.
● Similarly, if the risk is only or primarily to the employee seeking accommodation, the
employee’s willingness to assume that risk, once it is explained by the employer, will also
be taken into account.
● If there are means to reduce the safety concerns—for example, through the use of
medication—undue hardship is unlikely to be found.
3. Other Limits to the Duty to Accommodate —
In its Policy on ableism and discrimination based on disability, the OHRC notes that, in some
cases, courts and tribunals have recognized that even where the factors of cost, outside sources
of funding, and health and safety do not amount to undue hardship, there is not a limitless right
to accommodation.
Assuming that the organization has, in good faith, meaningfully explored possible
accommodations, it may be able to prove that accommodation is not possible because of
particular circumstances. These circumstances could include —
● No accommodation is available that allows the person to fulfill the essential
requirements of the job (e.g., where an employer would have to hire or assign
another employee to perform some or all of the essential job duties in the
employee’s place).
● Where the person requesting accommodation does not participate in the
accommodation process (e.g., the employee refuses to comply with reasonable
requests for information necessary to show and/or meet his accommodation needs,
or where he refuses to take part in developing accommodation solutions).
● Where the request for accommodation turns out to be a “competing human rights”
situation (e.g., in a small office where one employee’s guide dog causes a severe
allergic reaction in another employee or, as another example, where the employer
has a limited number of roles involving duties within the employee’s limitations and
restrictions, and those positions are already filled with employees the employer is
accommodating).
Fulfilling the Duty to Accommodate : —
he duty to accommodate applies to all grounds of discrimination, but it is most likely to arise in
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the context ofdisability, creed, sex (including pregnancyand breastfeeding), and family
status,because these are the areas where specialneeds are most common.
1. Accommodating Employees with Disabilities —
Methods of Accommodation :
he Code contains a specific provision,section 17(see above), with respect to the duty to
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accommodate for disability — It recognizes that individuals with a disability may not be able to
perform every part of every job.
Under section 17, the employer may require an employee with a disability to perform only job
duties that are “essential.” — like having a driver’slicense for a sales job.
Once the essential job duties are determined — the employer is required to accommodate a
person with disability upto the point of undue hardship, to enable the person to perform those
essential duties.
Accommodations may include—
- making changes to the layout of the workplace to make it barrier-free, such as building
ramps and wheelchair-accessible washrooms or modifying equipment and vehicles.
- It may also require changing the way the work is done – which may involve providing
stools, special software, or technical aids;
- modifying work hours; or
- Reassigning disabled employees to vacant jobs that they are able to perform.
pisodic disabilities(e.g., arthritis, multiple sclerosis,and migraines) may require
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accommodations such as flex-time, providing a private area in the workplace in which to rest or
take medications, project-based work (where the longer time frame allows for periods of
disability), and ergonomically designed equipment.
ornon-physical disabilitiessuch as learning disabilities,accommodation may include
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allowing the employee to work in a quieter area, providing clearer and/or written instructions,
and providing specialized training.
anager and supervisor trainingare also crucial:— front-line supervisors need to be aware
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of how to respond to employees who disclose a disability, sensitized to the supports required
and understand the types of accommodation available, and be prepared for any co-worker
issues that may arise (like perception of favouritism by co-workers)
orkplace accommodations need not be expensive —Oftenthe largest investment is in
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taking the time to understand what the employee needs and being flexible in the range of
ccommodation possibilities considered — In some circumstances, performance standards or
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productivity targets may have to be modified.
mployers are required totest disabled people individuallyto determine whether their
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disability affects their ability to perform the duties of the job.
● A lthoughemployer sizeis a relevant factor in determining when the point of undue
hardship has been reached, case law makes it clear that even smaller employers have a
positive obligation to seriously consider how a disabled employee can be accommodated.
● As a point of interest, it is possible that aunionized employerthat has met its duty to
accommodate under the Code will be found by an arbitrator to have not met its duty under
the collective agreement if the wording in that agreement sets a higher standard.
● In other words, wherenegotiated provisions exceed human rights requirements,
employees are entitled to those higher standards — On the other hand, where
negotiated provisions fall below human rights requirements,employees are entitled
to the standards set by the Code.
( A bleismis a new human rights term that appears inthe OHRC’s more recent policies. It may
be defined as: —-
[A] belief system, analogous to racism, sexism or ageism, that sees persons with disabilities as
being less worthy of respect and consideration, less able to contribute and participate, or of less
inherent value than others.
Ableism may be conscious or unconscious and may be embedded in institutions, systems, or
the broader culture of a society. It can limit the opportunities of persons with disabilities and
reduce their inclusion in the life of their communities.)
orms of Accommodation : —
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The OHRC’s Policy on ableism and discrimination based on disability lists the following potential
disability-related accommodations : —
● allowing a flexible work schedule;
● modifying job duties;
● modifying policies;
● making changes to the building (e.g., installing ramps, handrails, automatic door openers,
wider doorways, etc.);
● modifying workstations (e.g., making ergonomic changes, supplying a specialized chair,
back support, etc.);
● providing specialized adaptation or assistive devices for computers, accessible
technology;
● providing alternative ways of communicating with the employee;
● additional training;
● allowing short-term and long-term disability leave;
● job bundling and unbundling; and/or
● alternative work.
Providing Alternative Work : —
● E ssex Police Services Board v Essex Police Association suggests that, at least where
long-term employees are involved, the duty to accommodate may require the employer to
create a position — This would involve taking lighter job duties that other people currently
perform and putting them together to make a new job.
● In practice, the employer’s obligation to accommodate an incumbent employee returning
to work after an injury is probably greater than its obligation to accommodate job
applicants.
● However, there isno legal requirement to create a jobout of tasks not currently
being performed.
● The employee must be able toperform a useful and productive job for the employer;
otherwise, the situation would constitute undue hardship.
● Where an employee isplaced permanently in a lower-paid, lower-ranked positionas
a result of accommodation, and allother alternatives have been exhausted,an
employer canpay that individual the same as other employeeswho are performing the
same work.
How Diligently Must an Employer Pursue Its Duty to Accommodate? —
ccording to the Commission’s policies, there is no set rule dictating how diligently an
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employer must pursue its duty to accommodate an employee with a disability.
An employer’s obligation depends on thecircumstances,the nature of the disability, and the
predictability and frequency of an employee’s absences.
Theprognosis is especially important: — is the employeelikely to return to work in the
foreseeable future?
The better an employee’s prognosis, the greater the employer’s duty to accommodate.
Theemployer’s duty to accommodate is ongoingandmust be pursued actively.
An employer must not simply decide that an employee with a particular disability is incapable of
performing a job.
It mustseek information, in an objective manner,to help it make that determination and to
identify reasonable alternatives.
Failure to make proper inquiries undermines an employer’s contentionthat it attempted
accommodation or that accommodation constitutes undue hardship — an employer should not
assume the duty applies only to an employee’s previous position or that an alternative position is
unsuitable without seeking more information.
It can also result in significant liability for wages lost during the period that the employee should
have been accommodated and for the employee’s mental suffering.
The Procedural Dimension of the Duty to Accommodate —
he procedural duty to accommodate involves obtaining all relevant information about the
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employee’s disability, at least where it is readily available. You can include information about the
employee’s current medical condition, prognosis for recovery, ability to perform job duties, and
capabilities for alternate work.
Employee’s Obligation to Cooperate : —
● O nce hired, an employee has an obligation to let the employer know about the need for
accommodation.
● There is also the duty to cooperate with the accommodation process, including
responding to reasonable requests for medical documentation in the case of ongoing
absences and keeping the employer informed of progress and recovery prospects.
● While an employer is not entitled to request anIndependent Medical Examination (IME)
in an effort to “second-guess” an employee’s medical expert, it may do so where, for
example, it has legitimate concerns regarding the reliability of the employee’s treating
expert or otherwise reasonably doubts it can obtain the information it needs from that
expert.
How Should an Employer Treat Accommodation Requests? —
egardless of the type of disability, the accommodation process usually starts with a
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conversation with the employee and, optimally, remains interactive throughout.
In responding to requests for accommodation, employers should consider the following
guidelines : —
● Have one process for responding to all requests for accommodation.
● Do not be dismissive of any request, even if it seems unusual.
● Maintain communication with the employee throughout the process. The process should
be a two-way dialogue between the employer and the employee (and a three-way
dialogue if a union is involved).
● Require appropriate information, including medical documentation if applicable, that
speaks directly to the employee’s ability to do the job and is justifiable — not request
specific diagnosis, information irrelevant to job duties, or the employee’s entire medical
file.
● Do research and educate yourself. Work with the employee to understand the needs and
limitations and how the (protected) ground intersects with job duties. Do not make
assumptions.
● Assess whether there is a legitimate need for accommodation.
● Consider options for accommodation where there is a legitimate need — employers are
entitled to consider the options and choose one that is reasonable — and not cause
ndue hardship and can consider the cost, outside sources of funding, and health and
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safety requirements of the job (if any).
● Document all considerations and assessments, as well as the employee’s responses.
● Clearly explain to the employee—and be prepared to show why it is the case—if you
determine that you cannot accommodate them without undue hardship.
● Maintain confidentiality.
● Monitor and adjust the steps taken, as the employee’s needs or the employer’s
circumstances might change over time.
2. Accommodating Employees Who Abuse Drugs or Alcohol —-
● C anadian law defines alcohol and drug abuse as a disability and therefore considers it to
be a prohibited ground of discrimination.
● Employees who are dependent on these substances are entitled to be reasonably
accommodated unless it causes the employer undue hardship.
● This typically obliges an employer to institute an employee assistance program (EAP) or
to allow an employee time off work to attend such a program.
● An employer generally does not have to pay for the treatment program, although
some benefit plans may provide disability payments to the employee.
● Treatment is usually followed by thedevelopment of a return to work plan, which may
include modified duties and regular post reinstatement drug or alcohol testing to ensure
there is no relapse.
● However, accommodating substance abuse does not require an employer to accept
lengthy, ongoing absences unrelated to rehabilitation.
● Moreover, if an employee does not benefit from rehabilitation efforts, an employer that is
fair and consistent in applying its own policies is not required to hold a job open
indefinitely.
● An employer who appears to condone substance abuse by ignoring it, then reacts
suddenly in dismissing an employee, is in a different legal situation.
● To meet its duty to accommodate an alcohol- or drug-dependent employee, an employer
should require the employee to undergo counselling or rehabilitation and never create the
impression that it is tolerating the abuse.
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● he recreational use of drugs or alcohol does not qualify as a disability.
● If an employee contravenes an employer’s policy by having drugs or alcohol on the
employer’s property and the employer establishes that the employee does not have a
substance abuse “problem,”there is no statutory duty to accommodate— In this
case, the employer may discipline the employee in the same manner as it would any other
employee.
● M oreover, anemployee has to do more than simply say he has a substance abuse
problem; — there must beconvincing, objective evidencefrom, for example, a
credible medical expert who has treated the worker at the relevant time. .
● If an employer dismisses an employee who is subsequently determined to have a drug- or
alcohol-related disability, the employee may be entitled to reinstatement and
accommodation.
MARIJUANA FOR MEDICAL USE —
● S ince April 1, 2014, medical marijuana users in Canada have been able to procure
marijuana based on a medical doctor’s authorization only; a licence from Health Canada
is no longer required.
● This change is expected to lead to a significant increase in medical marijuana users—up
to almost 450,000 by 2024.
● This in turn impacts the workplace because where marijuana is medically authorized to
treat a medical condition (e.g., epilepsy, multiple sclerosis, chemotherapy-related nausea),
an employer has a duty to accommodate its use unless doing so would constitute undue
hardship.
● In very rare cases this potentially includes allowing an employee to use marijuana during
working hours if it is medically necessary to do so.
● T hat said, an employer does not have to permit an employee to smoke marijuana while on
the job, work while impaired, or expose other workers to second-hand smoke.
● Accommodation may include allowing smoking in a designated smoking area during
scheduled breaks—even though tobacco smoking is not allowed.
● An employer policy could restrict the employee from smoking while in uniform, in public
view, in company vehicles, or in the vicinity of other workers or customers who may come
into contact with the smoke.
● The employer may also explore alternatives to smoking, such as ingesting the drug in
food. Similarly, the employer and employee could consider a modified work schedule or
leave of absence during the period of treatment, if relevant.
● Where safety is a concern, reassignment to a non-safety-sensitive position is
another alternative
● Where safety concerns cross the line into undue hardship for medical marijuana use —
will be determined on a case-by-case basis.
ccommodating for medical marijuana useis similarto accommodating employee use of any
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medically prescribed drug that can have an impact on safety or performance. Below are some
suggested questions for employers to ask employees who raise the issue of medical marijuana
use: —-
● Is its use medically authorized?
● If so, when and how often do they need to take the product?
● ill they be taking it at work?
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● In what form will they take it?
● Where will they take it?
● How long do they anticipate needing to take it?
● What are the side effects and restrictions when using—and for how long? (Does it
affect the employee’s ability to perform the job safely?)
LEGALIZATION OF MARIJUANA FOR RECREATIONAL USE —
● T he Federal Liberal government announced that, effective October 17, 2018, recreational
use of marijuana will be legal for individuals aged 18 years or older. Each province can
develop its own regulations as well.
● For example, in Ontario it is anticipated that the minimum age for use will be 19 years old
(the same as for alcohol and tobacco), and use will be restricted to private residences and
will not be allowed in vehicles or in public places.
● Even with its legalization, accommodation for marijuana use—to the point of undue
hardship—is only required if it is medically authorized use or use stemming from a
substance abuse disability.
● Employees may be disciplined, including by termination, for recreational marijuana use if
such use is prohibited by employer policy in the same way that employees may be
disciplined for unauthorized alcohol use in the workplace.
● In certain circumstances, such as safety-sensitive workplaces where there is justified
concern with substance abuse, random drug and alcohol testing may be permitted.
3. Accommodating Employees’ Religious Beliefs and Practices (Creed) —
● T he requirement to accommodate an employee’s creed may arise in a number of areas,
including dress codes, break policies, work schedules, and religious leave.
● According to Meiorin, flexibility should be built into an employer’s policies—
flexibility to accommodate daily periods of prayer; deviation from dress code for religious
reasons; modification of the requirement of a dress code designed to address a health
and safety issue — up to the point where health and safety risks are so serious that
accommodation constitutes undue hardship.
Religious Days Off : —
uman rights law requires an employer to accommodate the religious observances of
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employees who are unable to work on particular days by relieving them from working on those
days unless this causes undue hardship.
What Is Creed?
he OHRC’s updated 2015Policy on Preventing DiscriminationBased on Creedhas
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expanded the definition of creed toinclude religion(broadly defined) and non-religious
elief systemsthat, like religion, substantially influence a person’s identity, worldview, and way
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of life. It states that the following characteristics are relevant when considering if a belief system
is a creed under the Code. The policy notes that newer religions or creeds may be included on a
case-by-case basis.
A creed : —
● is sincerely, freely, and deeply held;
● is integrally linked to a person’s identity, self-definition, and fulfillment;
● is a particular and comprehensive overarching system of belief that governs one’s
conduct and practices;
● addresses ultimate questions of human existence, including ideas about life,
purpose, death, and the existence or non-existence of a Creator and/or a higher or
different order of existence; and
● has some “nexus” or connection to an organization or community that professes a
shared system of belief.
DO RELIGIOUS DAYS OFF HAVE TO BE PAID? —
● According to the Markovic v Autocom Manufacturing Ltd. decision, the duty to
accommodatedoes not require an employer to pay employees for not working on a
religious holiday if it offers realistic options for making up the lost time.
● Furthermore, requiring those seeking time off for religious observance to negotiate from a
menu of options is not discriminatory.
SINCERITY OF BELIEF IS KEY —
● W hen considering the duty to accommodate for a religious observance, there is one
threshold question: — does the employee genuinely believe that the religious practice is
necessary?
● The OHRC’s updated2015 Policy on Preventing Discrimination Based on Creed
states that employers must take requests foraccommodations based on creed at face
valueunless there is good reason to believe that the request is being made in bad faith.
● Questioning someone’s sincerity of belief should be “as limited as possible” and occur
only where “there is a legitimate reason to doubt” it — the individual making the request
need only establish that an asserted creed belief is “in good faith, neither fictitious nor
capricious, and that it is not an artifice”.
● As such, whether a particular practice or observance is required by official religious
dogma or is in conformity with the position of religious officials of that faith is irrelevant
except in extreme cases.
● As with the other grounds, employees seeking accommodation for creed-related needs
are required to work with their employers and other affected parties to find solutions to
these issues
Accommodating Religious Diversity : —
ere are some practical suggestions for employers to enhance religious diversity in the
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workplace and minimize claims of discrimination based on creed : —
● C reate a culture of human rights in the workplace, with clear policies, where employees
don’t feel like they have to wait until after they leave employment to raise issues.
● Address any potential issues proactively. If you hear an employee may be upset, ask him
if he needs accommodation.
● Have managers take part in training.
● Don’t make assumptions about how people practise their faith. When a request for
accommodation is made, you may make respectful inquiries about its religious
significance but do so in good faith and with the aim to accommodate the employee
wherever possible (i.e., to the point of undue hardship).
● If inappropriate comments are made in the workplace related to creed (or any other
prohibited ground), make it clear that those comments will not be tolerated and impose
discipline, as appropriate.
4. Accommodating Employees’ Pregnancy and Breastfeeding Needs —
● P regnant employees or employees who are breastfeeding may require temporary
accommodation in the workplace.
● This could include — temporary relocation from a work area that might endanger the
pregnancy, modification of work duties, a flexible work schedule, increased break time,
special parking spaces, accommodating medical appointments, and appropriate
workplace support for breastfeeding.
● Pregnancy-related accommodation extends to the area of benefits.
● An employee who requires time off during or after her pregnancy or parental leave arising
from pregnancy-related health concerns is entitled to benefits under an employer’s
workplace sick or disability plan.
● In addition to accommodating pregnancy-related concerns, employers must also
accommodate breastfeeding requirements — This may mean allowing the baby’s
caregiver to bring the baby into the workplace to be fed, making scheduling changes to
allow time to express milk, or providing a comfortable, private area for breastfeeding.
● According to the OHRC’s updated2014 Policy on PreventingDiscrimination Because
of Pregnancy and Breastfeeding, it is illegal to discriminatebecause a woman is
pregnant or has chosen to (or not to) breastfeed her child, and discrimination is also
prohibited against someone because she was pregnant; was trying to get pregnant; has
had an abortion, miscarriage, or stillbirth; is going through fertility treatments; experiences
pregnancy-related complications; or has specific needs related to pregnancy.
5. Accommodating Employees’ Family Status —-
● T he duty to accommodate for family status was generally taken to mean that employers
havesome obligationto assist employees who are balancing work and family
responsibilities and to avoid policies that adversely affect them.
● For example, an employer may need to provide flexible work hours for an employee who
is caring for aging parents or having temporary difficulties arranging childcare.
● In the past few years, however, courts and tribunals have been increasingly asked also to
consider theextent to which employers have a duty to accommodate employees for
their general family caregiving obligations.
● More recent cases on this issue, however, make it clear that an employer’s duty to
accommodate extends to “ordinary,” not just “substantial,” family obligations.
he Federal Court of Appeal set out a four-part test for establishing prima facie discrimination on
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the ground of family status resulting from childcare obligations (Canada (Attorney
General) v Johnstone case)
The four elements that a complainant must prove to establish a prima facie case of
discrimination based on family status and the duty to accommodate childcare needs are : —:
● The child is under the complainant’s care and supervision
● The complainant’s childcare obligations reflect a legal responsibility rather than
merely a personal choice (e.g., taking the child to extracurricular activities)
● The complainant has made reasonable efforts to meet those childcare obligations
and no alternative solution is reasonably accessible.
● The workplace in question interferes with the fulfillment of the legal obligation in a
manner that is more than trivial or insubstantial.
● T o date,the Federal Court of Appeal is the highest level of court to deal with this
issueand it has set the standard for federally-regulated employers.
● It clarifies that the duty to accommodate for childcare extends only toparental (legal)
obligations, not to merely personal choices, and that the employee must have made
reasonable efforts to self-accommodate before the duty is triggered
● However, more recently the Johnstone test has, itself, been criticized for still requiring a
higher threshold to establish a prima facie case of discrimination based on family status
than on other grounds.
( C ompared to Johnstone, the Misetich test lowers thethreshold for establishing child- or elder
care-related discrimination based on family status.
It also seems less clear: for example, it is not apparenthow much the contextual assessment
of “other supports available to the applicant” differs from the self-accommodation
requirementfound in Johnstone.
owever, at this point in time, it appears that provincially-regulated employers in Ontario
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must now meet the standard set out in Misetich, asit evolves, while theJohnstone test
applies to federally-regulated employers.)
What Medical Documentation May an Employer Request? —
In February 2017, the OHRC released its policy position on the type and scope of medical
documentation that needs to be provided to an employer when an employee makes a
disability-related accommodation request.
As stated in the OHRC Policy Position on Medical Documentation to be Provided when a
Disability-related Accommodation is Made, the medical information that needs to be provided to
support a disability-related accommodation request includes the following : —
● that the person has a disability;
● the limitations or needs associated with the disability;
● whether the person can perform the essential duties or requirements of the job . . .
with or without accommodation;
● the type of accommodation(s) that may be needed to allow the person to fulfill the
essential duties or requirements of the job . . . ; and
● regular updates about when the person expects to come back to work, if they are
on leave.
Where more information about a person’s disability is needed, the information requested must
be the least intrusive of the person’s privacy while still giving the organization enough
information to make an informed decision about the accommodation — The focus should always
be on the functional limitations associated with the disability, rather than a person’s diagnosis.
Duty to Inquire —
● If an employer notices a deterioration in performance or some other indicator of an
underlying issue (e.g., uncharacteristic lateness or absenteeism, isolation from
colleagues, changes in functioning), it should address the matter with the employee.
● An employer must take the initiative where a problem is apparent; it cannot turn a blind
eye to suspicious behaviour and then argue that it is under no obligation to accommodate
—- inquire respectfully and if the employee denies any disability or a need for
accommodation — then the employer is under no obligation to accommodate and proceed
with discipline.
Harassment —-
ntario’s Human Rights Code prohibits workplace and sexual harassment in
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employment.
he employer not only has a duty to provide a working environment that is free from harassment
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and discrimination, it must also deal effectively and efficiently with any allegation of harassment
of which it is, or should be, aware.
Workplace Harassment : —
he Code states that employees have the right to be free from abusive or annoying behaviour
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that is based on one or more grounds in the Code.
Section 5(2) of the Codestates the following : —
“Every person who is an employee has a right to freedom from harassment in the workplace by
the employer or agent of the employer or by another employee because of race, ancestry, place
of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender
expression, age, record of offences, marital status, family status or disability.”
● H arassment is defined insection 10 of the Codeas“engaging in a course of
vexatious comment or conduct that is known or ought reasonably to be known to
be unwelcome” (emphasis added).
● Any demeaning or offensive behaviour based on membership or perceived
membership in a protected group can be harassment.
● This includes verbal threats, intrusive questioning (e.g., about a disability), name-calling,
intimidation, jokes, unwelcome remarks, or offensive pictures and posters.
● A “course of conduct” means a pattern of behaviour; therefore, usually—but not
always—more than one incident is involved.
● A single incident may constitute harassment if it is extremely offensive.
● The harassing comments or conductneed not explicitlyinvolve a prohibited groundof
discrimination to be covered by the Code.
● Where the conduct is known to be, or should have been known to be, unwelcome, the
person who is the target of the harassment need not formally object to the behaviour to
triggersection 5(2).
● There is no requirement that a person must object to the harassment at the time for a
violation of the Code to exist, or for a person to claim his or her rights under the Code.
● In cases of subtle forms of harassment, or where the harasser does not realize that his
conduct is annoying, the harassed employee may need to let him know how his conduct is
being perceived.
● T hestandard for determining whether harassmenthasoccurred is objective: — would
a reasonable person think the comment or conduct is inappropriate? (reasonable person
test)
● It does not require that most people view the behaviour as harassing as long as the
recipient does and that perspective is reasonable.
● A t the same time, in determining whether conduct constitutes harassment, adjudicators
have noted thatsupervisors and managers are not heldto a “standard of perfection”
in carrying out their duties.
● The arbitrator further notes that while (given the absence of a requirement of intent) acting
in good faith cannot be a complete answer to any harassment allegation, the idea is that
“some human leeway must be afforded” lest every workplace incident is treated as
harassment.
Poisoned Work Environment : —
● A second type of harassmentinvolves a “poisoned work environment.” —- This refers to
a workplace that feels hostile because of insulting or degrading comments or actions
related to a prohibited ground of discrimination.
● It is not necessary that a person who perceives a hostile work environment be the target
of the comments or actions in a case where the workplace itself is poisonous.
● To constitute harassment,the comments or actionsmust be ones that would
influence and offend a reasonable person.
● However, when profanity or coarse conduct is directed toward a particular group—even if
it is not directed at a particular individual—it is a human rights issue.
● An employer has an obligation to monitor, prevent, and respond promptly to harassment
that could poison the workplace.
● Similarly, an employer that knew or should have known of harassment, and could have
taken steps to prevent or stop it, may be liable.
● An employer can also be held responsible for harassment thatoccurs away from the
workplace, such as at a company barbecue, conference,or office holiday party.
Sexual Harassment : —
exual harassment —a course of vexatious commentor conduct (based on sex or gender
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identity) that is known or ought reasonably to be known to be unwelcome.
Section 7(2)of the Ontario Human Rights Code statesthe following : —
Every person who is an employee has a right to freedom from harassment in the
workplace because of sex, sexual orientation, gender identity or gender expression by his
or her employer or agent of the employer or by another employee.
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● exual harassment is similar to other forms of workplace harassment.
● More than one incident is usually required to sustain a human rights complaint;a single
incident is sufficient, however, if the conduct isserious enough that the harasser must
have known that it was offensive.
● Sexual harassment may be practised by a male on a female, a female on a male, or
between members of the same sex.
Examples of Sexual and Gender-Based Harassment : —
he OHRC’s 2013 Policy on Preventing Sexual and Gender-Based Harassment sets out the
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following examples of sexual and gender-based harassment —
● Demanding hugs.
● Invading personal space.
● Making unnecessary physical contact, including unwanted touching, etc.
● Using language that puts someone down and/or comments toward women (or men,
in some cases), sex-specific derogatory names.
● Leering or inappropriate staring.
● Making gender-related comments about someone’s physical characteristics or
● mannerisms.
● Making comments or treating someone badly because they don’t conform with
sex-role stereotypes.
● Showing or sending pornography, sexual pictures or cartoons, sexually explicit
graffiti, or other sexual images (including online).
● Sexual jokes, including passing around written sexual jokes (e.g., by email).
● Rough and vulgar humour or language related to gender.
● Using sexual or gender-related comment or conduct to bully someone.
● Spreading sexual rumours (including online).
● Making suggestive or offensive comments or hints about members of a specific
gender.
● Making sexual propositions.
● Verbally abusing, threatening, or taunting someone based on gender.
● Bragging about sexual prowess.
● Demanding dates or sexual favours.
● Asking questions or talking about sexual activities.
● Making an employee dress in a sexualized or gender-specific way
● Acting in a paternalistic way that someone thinks undermines their status or position
of responsibility.
● Making threats to penalize or otherwise punish a person who refuses to comply with
sexual advances (known as reprisal).
● U nder Canadian case law, the term “sexual harassment” covers a broad range of conduct
— it is “unwelcome conduct of a sexual nature that detrimentally affects the work
environment or leads to adverse job-related consequences for the victims of harassment”
— It can be physical or verbal.
● The standard for establishing sexual harassment is objective: would a reasonable person
in the recipient’s position find the comments or conduct inappropriate?
● It is not necessary for all men, for example, to view certain behaviour as harassing
as long as the recipient does and that perception is reasonable.
● S exual harassment can also include making comments that are not obviously sexual in
nature.
● In considering claims of sexual harassment, courts and tribunals recognize that there are
different types of workplace culture: — what’s tolerated as “shop talk” in some workplaces
might be considered inappropriate in others with a more formal atmosphere.
● At the same time, tribunals have found that where a complainant initiates and willingly
participates in sexual banter, co-workers cannot reasonably be expected to know that this
type of conduct is no longer welcome unless the complainant communicates that fact.
● At the same time, tribunals have found that where a complainant initiates and willingly
participates in sexual banter, co-workers cannot reasonably be expected to know that this
type of conduct is no longer welcome unless the complainant communicates that fact —
and continuation after later would constitute harassment contrary to the Code.
● Human rights adjudicators have recognized that sending provocative and unwanted text
messages (“sexting”) outside of the workplace and office hours can constitute sexual
harassment as well.
Sexual Solicitation : —
[ Section 7(3)of the Ontario Human Rights Code states:
Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a
benefit or advancement to the person where the person making the solicitation or advance
knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the
reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or
advancement to the person.]
● T his provision refers to unwelcome advances or requests for sexual favours by a person
in a position of authority in the workplace, such as a supervisor.
● The threat of reprisal or promise of reward may be explicit, such as where an employee is
denied a promotion because he refuses a sexual advance from his supervisor, but it need
not be.
● It can be implied from the circumstances and the power imbalance between the two
individuals. Section 7(3) is also relevant if a co-worker who is in a position to grant or deny
an employment-related benefit makes a sexual advance.
Promoting a Harassment-Free Workplace : —
● A
n employer may greatly reduce the chances of having sexual and other types of
harassment occur by devising, communicating, and enforcing a policy against
harassment.
● S uch a policy and programs supporting that policy are now required underBill 132
amendments to Ontario’s Occupational Health and Safety Act.
● This policy must include measures that educate employees about their rights and provide
a process for employees to come forward with any complaints.
● Having and clearly communicating such a policy may also limit the employer’s liability for
harassment committed by non-management employees.
To be effective,workplace and sexual harassment policiesshould do the following:
1. Indicate the employer’s commitment to eliminating harassment in the workplace. Make it
clear to new hires that discrimination will not be tolerated.
2. Define workplace and sexual harassment and explain the types of behaviour that are
considered harassment. Communicate this information regularly to staff and managers
alike.
3. Include awareness programs to underline the policy’s importance. Employees must be
encouraged to recognize and report instances of harassment.
.
4 Supervisors and managers must be able to recognize harassment and respond quickly.
5. Describe the process by which complaints are brought to the employer’s attention and
investigated, and describe the penalties/consequences for violating the policy.
6. Advise employees either to inform harassers that their behaviour is unwelcome or to
inform their supervisor of the harassment. — Where the supervisor is the alleged
harasser, the policy must indicate an alternative reporting process.
7. Insist that supervisors (or an alternative individual, as appropriate) deal promptly with
allegations of harassment
8. Treat complaints confidentially and inform employees in advance about the confidentiality
policy.
.
9 Ensure that employees will not face reprisals for making a genuine harassment complaint.
10. Require a prompt and thorough investigation by an impartial person who is knowledgeable
in human rights law.
11. Critical elements in the investigation include informing the alleged harasser that a
complaint has been filed, providing particulars that allow him or her to respond, and
conducting separate interviews with both parties, as well as their legal counsel and
material witnesses.
2.
1 Maintain a written record of incidents of harassment and actions taken.
13. Circulate the anti-harassment policy to all employees, including those who are newly
hired, and post it in a prominent spot in the workplace.
14. Train staff on policy and procedures and have employees sign off on it annually.
( It should be noted that an employer that fosters an inclusive workplace and trains its managers
to recognize and respond promptly to harassment, and to take such complaints seriously, may
avoid liability for harassment by non-managerial employees under the Code. This situation
iffers from workplace discrimination where the employer is typically liable for the conduct of its
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employees.)
Investigating Harassment Complaints : —
ill 132’s amendments to Ontario’s Occupational Health and Safety Act created a
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statutory obligation to conduct an investigation into workplace harassment allegations.
OHSA Requirements for Investigations of Harassment —
ill 132 amendments to the OHSA require an employer’s investigation of workplace harassment
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to meet certain standards — Employers must:
● detail measures for reporting incidents of workplace harassment;
● explain how incidents or complaints will be investigated and handled;
● set out how information about an incident or complaint will not be disclosed unless
necessary for the investigation; and
● state how the alleged victim and harasser will be informed of the investigation results and
any corrective action arising out of the investigation.
ote that OHSA inspectors may order an employer to have an investigation conducted by an
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impartial person, at the employer’s expense — This will presumably happen where the employer
either failed to investigate an incident or complaint entirely or where the employer’s own
investigation was cursory or deeply flawed.
Investigating Harassment Complaints—Doing It Right : —-
1. Investigate in a timely manner:
● Excessive delay reduces the effectiveness of the investigation (recollection of events gets
more difficult, the working environment becomes strained).
● On the other hand, never rush to the point of undermining the accused’s ability to respond
to the allegations.
2. Ensure that the investigator is unbiased and properly trained —
● The investigator should not have a stake in the outcome (as in the case of a supervisor
investigating a subordinate).
● It may be necessary to look externally for someone who is, and who is perceived as
being, sufficiently objective.
● The investigator must be knowledgeable about both human rights laws and due process.
3. Give the accused a chance to adequately respond —
● Fairness demands that you give the accused an opportunity to defend herself.
● In particular, provide the accused person with specific information about the allegations
(e.g., dates and details) because it is difficult to respond adequately to vague or general
accusations of harassment.
4. Follow the employer’s own policies and procedures —
● This may seem obvious but failure to follow set procedures (assuming they were well
thought through in the first place) undermines the investigation unless there is a good
reason to deviate from them.
● Investigators should be trained in human rights and in how to conduct a proper
investigation.
5. Make sure witnesses are interviewed separately —
● Interviewing witnesses together can influence their statements and lead to collaboration or
intimidation.
● Where there is more than one accuser, they should be warned not to confer when putting
their complaints in writing and that their complaint should only reflect their own individual
experiences.
6. Ask non-leading questions —
● Leading questions are those that are phrased in a way that prompts the witness on how to
respond.
7. Interview third-party witnesses —
● Many harassment issues come down to credibility—he said/she said—so it is important,
where possible, to get written statements from third-party witnesses.
● At the same time, interview only those people who can contribute to the fact-finding
process.
8. Document the investigation —
● As always, the investigator should thoroughly document each step of the investigation.
For example, having a complete record of what witnesses said lends credibility to the
investigation.
9. Keep an open mind —
● Some employers respond to a complaint by trying to sweep the matter under the rug, —
while other employers presume the accused must be guilty and overreact by dismissing
the accused without a proper investigation.
10. Consider the entire context —-
● Where discipline is warranted, keep in mind the entire context in determining the
appropriate response.
● For example, a higher degree of discipline, up to and including dismissal, may be called
for where the accused is in a supervisory position, but may be inappropriate for an
accused who is not.
uring the investigation, the respondent should typicallynot be suspended without pay
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because this may suggest guilt; therefore, where warranted, the respondent should be placed on
a leave of absence, with pay, until the investigation is complete.
Investigation under Bill 132 of OSHA : —
● The Code’s harassment provisions are engaged when the harassment relates to one or
more of the16 prohibited grounds of discrimination.
● However,since 2010, employees in Ontario may also file harassment complaints,
regardless of grounds, with their employer under the Occupational Health and Safety Act
(OHSA).
● Where an employee is alleging workplace harassment, the employer should determine
whether it is being claimed under the Code or under the OHSA, and then follow the
applicable internal complaint process, which can be similar or even virtually identical.
● However, note that with the passage of Bill 132’s amendments to the OHSA,an
investigation of all “incidents,” as well as “complaints,”of harassment is mandatory
and must meet the requirements for such investigations.
Employee Benefit Plans : —
● U ndersection 25of the Ontario Human Rights Code, an employee who is excluded
because of a disability from a benefit, pension, or superannuation plan or fund or from a
group insurance contract is entitled to compensation from her employer.
● The amount of compensation must equal the contribution that the employer would have
made for an employee without a disability.
● The compensation may include contributions to benefit premiums or accrual of vacation
credits. Employees who are absent from work because of a disability are entitled to
receive the same payments that an employer would make to employees who are not
working for other reasons.
Employer Liability for Human Rights Violations : —
● U ndersection 46.3of the Code, an employer isvicariously liable—that is, legally
responsible for the actions of another—for the discriminatory acts of its agents and
employees in the workplace.
● It is also directly liable for the actions of management.
● The situation with harassment is somewhat different — Although an employer’s liability for
workplace or sexual harassment committed by management employees is a given under
common law principles, — an employer may avoid liability for harassment by
non-managerial employees if it can show that it was diligent in preventing and responding
to the harassment. This applies to harassment that it either knew about or should have
known about.
● Clients or customerswho act in a discriminatory or harassing way toward an employee
in the employer’s workplaceare not liable under the Code.
● H
owever, an employer may be liable for their behaviour if the following criteria are met: —
it knew of, or had control over, the situation; it could have done something to prevent or
stop the behaviour; and it failed to act.
icarious liability —liability that arises when one party, such as an employer, is legally
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responsible for the acts or omissions of another party, such as an employee.
Human Rights Applications : —
● In2008there were significant changes made to the enforcement provisions of the Human
Rights Code.
● One of the most significant of these was the change to the respective roles of the
Commission and tribunal.
● T
he Commission no longer accepts or handles individual complaints of discrimination; all
new applications (formerly known as “complaints”) are now filed directly with the tribunal.
— This is referred to as the“direct access model.”
● T heCommission’smandate now is to advocate for human rights and promote public
understanding of, and compliance with, human rights requirements.
● For example, it may file its own application or intervene in an application in particular
cases of interest, such as those involving systemic discrimination.
● The Commission continues its mandate to develop policies on human rights issues.
● These policies are considered by the tribunal in making its decisions, so the Commission’s
numerous policies and guidelines on a wide range of human rights matters remain
relevant.
o satisfy its mandate “to provide for the fair, just and expeditious resolution of any matter before
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it,” thetribunal has extensive procedural and substantive powersunder sections43 to 45.2
of the Code to streamline its processes.
Under its Rules of Procedure it may:
● examine records it considers necessary;
● direct the order in which evidence will be presented;
● on the request of a party, direct another party to produce a witness when that person is
reasonably within that party’s control;
● question witnesses and advise when additional evidence or witnesses may assist the
tribunal; and
● narrow issues and limit evidence and submissions to those issues.
Human Rights Legal Support Centre : —
● In addition to the Commission and the tribunal, there is athird human rights body in
Ontario: —theHuman Rights Legal Support Centre.
● T he Legal Support Centre’s role is toprovide free legal advice and assistanceto
people making a human rights application.
● It was created to address the concern that, with the change in the Commission’s role,
applicants would have to represent themselves or incur the expense of hiring counsel.
● The Legal Support Centre is staffed with lawyers and paralegal support staff in Toronto
and several regional centres across the province.
● It also makes referrals to the private bar and legal clinics.
● Unlike Legal Aid, the Legal Support Centre does not require income testing, but only
applicants are eligible for the Centre’s assistance — Respondents must pay for their own
legal representation.
Making and Responding to an Application : —
● A pplications should be filed within one year of the date on which the discrimination is
alleged to have occurred.
● If there was more than one discriminatory event, the application should be filed within one
year of the last event.
● Applications filed after one year are not permitted unless the tribunal finds that there was
a good reason for filing late and that the delay will not negatively affect other people
involved in the application.
● Given the quick and direct access framework of this system, employers that receive an
application must focus immediately on developing a thorough response that frames the
legal issues in dispute and sets out the facts necessary to make their case.
● For example, in developing its response, an employer must carefully consider which
witnesses and evidence will be required for the hearing, because the tribunal has broad
powers to refuse or allow a party to present evidence or make submissions about a fact or
issue not identified in the materials.
● Closer to the hearing date, relevant documents must be delivered to the other party, and
only those documents can be relied upon in the hearing.
● There is limited opportunity for a respondent to make preliminary objections.
● If, for example, an employer believes that an application does not set out a prima facie
case of discrimination, or the application is frivolous or made outside the time limit, it must
typically raise that issue at a hearing, not before.
● Undersection 45.7 of the Code, parties to a tribunal decision may apply for a
reconsideration of the decision, but this option is only available in limited circumstances.
Covered by collective agreement —
● It should be noted that human rights issues that arise from a matter covered by a
collective agreement areusually heard by an arbitrator under the grievance
procedure of the collective agreement, rather than by the tribunal.
● In fact,most human rights litigation in Ontario is now heard by arbitrators under
procedures set out in collective agreements.
● U
ndersection 45, the tribunal may defer (delay hearing) an application where the same
subject matter is being dealt with in another proceeding, such as a labour arbitration.
(arbitrator —a person who decides disputes on the basis of evidence submitted by the parties)
Remedies Under the Code : —
U
● ndersection 45.2 of the Code, the tribunal has broad remedial powers.
● It can ordermonetary compensationor order a party to makenon-monetary
restitutionor to “do anything that, in the opinion of the tribunal, the party ought to do to
promote compliance with this Act.”
● Remedies may include anorder to hire or reinstate the applicant,compensate the
applicant for lost earnings or job opportunities, and pay damages.
1. Financial Awards : —
● U nder the post — 2008 system, possible damage awards are significantly broader and
larger than they were before.
● Now the Code simply states that the tribunal may order (unlimited) monetary
compensation for losses arising out of the human rights infringement,including
“compensation for injury to dignity, feelings, and self-respect” (s. 45.2(i)1).
● Financial awards under the Code have been increasing dramatically in recent years.
2. Non-Monetary Awards : —
● U ndersections 45.2 and 45.3 of the Code, the tribunal has the power to order one party
to make restitution to the other and to do anything that, in its opinion, the party ought to do
to promote compliance with the Code.
● For example, the tribunal may require an employer to change its policies, implement
training programs, establish an internal complaint system, and introduce
anti-discrimination and anti-harassment policies.
● R emedial ordersmay also require an employer to write an apology to an applicant,
implement an affirmative action hiring program, promote members of certain groups, and
offer educational programs for supervisors and managers.
● The tribunal may alsoorder reinstatement of an employee— In the past this remedy
was not often used because, given the time delays in the system, many employees had
moved on and did not want to return to that employer.
New Remedies : —
● A nother significant change to the system is thegranting of power to the courts to
award human rights remedies for civil claims where human rights issues are
involved.
● For example, a plaintiff sues her former employer in court for wrongful dismissal under the
common law and claims that the employer’s actions also violated human rights law — In
that situation, she may now ask the court to award damages (or even reinstatement,
previously only available as a statutory remedy) for a violation of the Code.
● Note that, as was the situation that existed under the old system, an employee only has
the ability to pursue an action for discrimination or harassment in the courts if it is tied to a
civil lawsuit such as a wrongful dismissal action.
( As was decided by the Supreme Court of Canada in Bhadauria v Board of Governors of
Seneca College,there is no independent tort of discrimination under the common law, so
unless there is a human rights element to a civil action, a human rights claim may only be made
through the Code).
● In those cases where there is a human rights element in a claim,an employee has the
option of either going to court or filing an application under the Code —She cannot
do both.
● In making that election, one of the factors to be considered is thepossibility of legal
costs being awarded against the unsuccessful party.
● Unlike in the civil courts, there are no provisions for costs to be assessed against an
unsuccessful litigant under the human rights system.
● This factor and the relative informality of the tribunal’s procedures may encourage some
applicants to pursue their claim through the human rights system.
● On the other hand, many who perceive that the main part of their claim is unrelated to
human rights may prefer to pursue their remedy in the civil courts
● T
heaward of damages for sexual harassment under the Human Rights Codeserves
a different (remedial) purpose than the award of moral damages, and the same conduct
may ground separate awards.
Penalties Under the Code : —
ndersection 46.2 of the Code, every person who contravenes the Code is liable to a
U
maximum $25,000 fine — This could include an individual supervisor or co-worker.
The Accessibility for Ontarians with Disabilities Act, 2005 : —
In 2005, Ontario passed the Accessibility for Ontarians with Disabilities Act (AODA).
● T he goal of this legislation is to make Ontario fully accessible to people with disabilities by
2025 by phasing in a series of accessibility standards.
● In contrast to the Human Rights Code’s case-by-case, complaint-driven approach,
— the AODA obliges organizations to address accessibility issues in a proactive
way.
● It is important to note that the AODA’s accessibility standards do not take away from
human rights requirements: — all employers, regardless of size, still have the duty to
accommodate an individual employee who is disabled to the point of undue
hardship.
● The AODA’s requirements are intended to complement and supplement those of the
Code, not replace them.
Under the AODA, there are nowfive accessibility standardscovering five key areas: —
● Customer service,
● Information and communications,
● Employment,
● Transportation,
● and Built environment (design of public spaces).
(The last four are combined into theIntegrated Accessibility Standards Regulation,known as
the IASR.)
● M ost of the standards covering employment (the Employment Accessibility Standards)
apply to all employers in Ontario who employ at least one paid employee.
● All but one started coming into effect for the Ontario government and legislature in2013.
(The effective date depended on the employer’s size and sector. For example,private
sector organizations with 50 or more employeeshad to be in compliance by January
1, 2016, while private sector organizations withfewer than 50 employeeshad to be in
compliance by 2017, although they are exempt from some standards.)
● The one workplace standard that came into effect earlier—inJanuary 2012—for all
employers, regardless of size,relates to the requirement to make workplace
emergency procedures accessible.
● Employers must help employees who are disabled stay safe in an emergency by providing
them with individualized emergency response information when necessary.
● This could involve, for example, designating two co-workers to assist an employee who
uses a wheelchair to leave the building in case of fire.
T
● he content of AODA compliance reportingrequirements depends on employer size.
● Organizations with 20 or more employeesmust report on their compliance every three
years (i.e., December 31, 2017, 2020, and so on).
● T his includes confirming that they have trained all of their employees and volunteers on
the AODA and the Ontario Human Rights Code as it pertains to persons with disabilities,
that their employment practices are accessible, and that information is available in
accessible formats and with communication support on request.
● Organizations withfewer than 20 employees are not required to file any AODA
compliance reports.
● N
ote thatdesignated public sector organizations, including hospitals and school
boards, are required to report on their AODA complianceonce every two years(i.e.,
December 31, 2015, 2017, 2019, and so on.
● A
ll private and non-profit organizations with 50 or more employeesandall public
sector organizationsare required to makeall Internet websites and web content
conform withWeb Content Accessibility Guidelines (WCAG)2.0 level AA (excluding
live captioning and audio description) byJanuary1, 2021.
General Requirements : —
In addition to requirements specific to each standard, the AODA contains the following general
requirements:
● To provide AODA training to staff, volunteers, and board members on the IASR and the
parts of the OHRC that relate to people with disabilities.
● To develop an accessibility policy.
● To create a multi-year accessibility plan and update it every five years (private and
non-profit organizations with 50 or more employees).
● To consider accessibility in procurement and when designing or purchasing self service
kiosks.
The following four requirementsapply to all organizations with one or more employees: —
● R
ecruitment — When recruiting, an organization has to make applicants aware that
accommodations are available to allow them to participate in the recruitment process, and
that assessment and selection materials are available in an accessible format on request.
● A
ccessible workplace information — When an employee with a disability requests it,
the employer must work with the employee to make workplace information (e.g., the job
description, employee manuals, company newsletters, health and safety policy)
accessible. This may involve putting it in an accessible format or reviewing it verbally with
that employee. This also includes workplace emergency response information. As soon as
an employee asks for it—or the employer becomes aware of the need—the employer
must provide accessible and customized emergency information.
● T
alent and performance management —Employers must take into account the
accessibility needs of employees with disabilities when applying their performance
management or career development processes to such employees. This could mean, for
instance, providing informal performance feedback in a way that considers an employee’s
learning disability (e.g., ensuring feedback is given in a quiet room) or providing large print
documents for individuals with low vision.
● C
ommunicating accessibility policies —An employer must let new employees know
about its policies to support people with disabilities and advise all employees when those
policies are changed. (e.g., through newsletters, emails, websites, bulletin boards, staff
meetings, or one-on-one conversations).
he following two additional requirementsonly apply to private and non-profit organizations
T
with 50 or more employees: —
● A
ccommodation plans —The employer must develop and have in place a written
process for the development of documented individual accommodation plans for
employees with disabilities. This process–related information will include the way in which
an employee can participate in the development of his or her individual accommodation
plan, the means of assessment, the measures taken to protect the employee’s privacy, as
well as how frequently the plan will be reviewed and updated. It also includes a process
that allows an employee to ask for a workplace representative (from the bargaining agent,
if unionized) to participate in the development process.
● R
eturn to work process —(unless an employee’s injury or illness is covered by the
return to work provision under any other law) — The employer must develop and
document a process to support employees who have been absent from work due to a
disability and require disability-related accommodations to return to work.
Class notes:
ld boys club - sexual discrimination
O
Employees are also obliged to participate in duty to accommodate
Undue hardship - cost, outside funding (tax cut), health and safety concerns
It mainly depends on the size of the organization
Changes made in the workplace
Reinstatement never happens since — only when it goes thru human rights tribunal
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