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Bill 164: Protecting some of Ontario's most vulnerable

Employers are obligated to keep the workplace free of discrimination and harassment
Revelers celebrate during the "WorldPride" gay pride parade in Toronto on June 29, 2014, a week-long event that celebrates the lesbian, gay, bisexual and transgender (LGBT) community. REUTERS/Mark Blinch

By Stuart Rudner and Nadia Zaman

The Ontario Human Rights Code is intended to provide equal opportunity to all citizens and prohibit discrimination based on various protected grounds including race, ancestry, national or ethnic origin, colour, religion, age, sex, sexual orientation, disability, citizenship, and record of offences.

At its heart, the code aims to protect the vulnerable and the marginalized. However, it is important to remember that the code does not prohibit discrimination or harassment generally; it only bans such conduct when it is based upon specified grounds. So, discrimination based upon gender is unlawful, but discrimination based upon, for example, net worth, is not.

Bill 164, Human Rights Code Amendment Act, 2017 aims to extend human rights protection to people in a disadvantageous social condition (such as those with a low income), as well as individuals with precarious immigration status and police records.

The bill also proposes to add genetic characteristics as a protected ground of discrimination. In other words, an individual would be granted the right to equal treatment without discrimination because she refuses to undergo a genetic test or refuses to disclose the results of a genetic test.

These amendments would further the aims of the code to promote the dignity and worth of all individuals and allow everyone to equally participate in our society.

Discrimination is defined as adverse treatment of a person on the basis of a protected ground. To prove discrimination, an applicant must show that there is a connection between the negative treatment and one of the protected grounds (for example, not being hired because of his immigration status, even if that is only part of the reason).

Once the applicant establishes prima facie discriminatory conduct, the onus shifts to the respondent to justify the conduct or establish that it is a bona fide occupational requirement (BFOR).

For example, the employer could show that there is no connection between the negative treatment and the code-protected ground of immigration status or establish that it is a BFOR (meaning Canadian work experience or how long that individual has been in Canada is essential to the job, without which the job cannot be performed).

To learn more about the burden of proof in human rights claims, read our blog post here.

The most significant change in the bill is prohibiting discrimination based on "social condition," which is defined as a social or economic disadvantage resulting from employment status, source or level of income, housing status (including homelessness), level of education, or any other similar circumstance. In other words, Ontarians living in poverty would be granted greater protections.

Currently, individuals are denied jobs, housing and other services for not having a fixed address or stable employment. The code would prohibit such discrimination if the bill becomes law.

Extending human rights protection to immigration status and police records would also be a big change. Currently, the code protects citizenship and record of offences. Immigration status and police records casts a much wider net, extending the protection to individuals such as migrant workers and those who have merely had contact with the police.

For instance, employers often ask candidates to provide police background checks, and may decide not to hire based on an individual's non-convictions records or police contacts. Such discrimination would no longer be permitted unless, of course, the employer could establish a BFOR. An individual applying to be an elementary school teacher, for example, could still be discriminated against for having a conviction as a sex offender.

If Bill 164 becomes law, more vulnerable Ontarians would be granted human rights protection.

Regardless of whether Bill 164 becomes law or not, employers are obligated to keep the workplace free of discrimination and harassment. Employers should immediately address any such behaviour with proper investigation or accommodation to avoid not only potential liability, but bad publicity, the risk that they will lose quality employees, decreased employee productivity, low morale, and increased absenteeism.

Nadia Zaman is an associate at Rudner Law in Toronto.

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Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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