2. What constitutes discrimination?
• Discrimination is not defined in the Code but usually
includes the following elements:
• not individually assessing the unique merits, capacities and
circumstances of a person
• instead, making stereotypical assumptions based on a
person’s presumed traits
• having the impact of excluding persons, denying benefits or
imposing burdens.
3. What constitutes discrimination?
• Adverse impact discrimination/constructive
discrimination : In most circumstances, 'adverse impact'
is an unwanted or unanticipated repercussion caused by a
specific practice. When it comes to hiring, which is where
the term is normally used, adverse impact is when a
disparity arises from poor hiring practices that can
alienate groups of people based on their ethnicity, age,
sexuality, gender, etc.
4. What constitutes discrimination?
• Undue hardship: Organizations covered by the Code have a duty to accommodate to
the point of undue hardship. Accommodation need not be provided if it causes undue or
excessive hardship. However, some degree of hardship is acceptable.
• The Code prescribes only three considerations when assessing whether an
accommodation would cause undue hardship:
• cost
• outside sources of funding, if any
• health and safety requirements, if any.
• No other considerations can be properly considered. For example, business
inconvenience, employee morale, third-party preferences, etc. are not valid
considerations in assessing whether an accommodation causes undue hardship
5. Duty to accommodate
• Under the Code, employers and unions, housing providers
and service providers have a legal duty to accommodate
the needs of people with disabilities who are adversely
affected by a requirement, rule or standard.
Accommodation is necessary to ensure that people with
disabilities have equal opportunities, access and benefits.
Employment, housing, services and facilities should be
designed inclusively and must be adapted to accommodate
the needs of a person with a disability in a way that
promotes integration and full participation.
6. Duty to accommodate
• Ontario human rights commission provides the principal
of accommodations three factors.
• Individualization
• Dignity
• Integration and full participation
7. Obligation of the employer as
per OHRC
• be alert to the possibility that a person may need an
accommodation even if they have not made a specific or formal request
• accept the person’s request for accommodation in good faith,
unless there are legitimate reasons for acting otherwise
• get expert opinion or advice where needed (but not as a routine matter)
• take an active role in ensuring that alternative approaches and possible
accommodation solutions are investigated , and canvass various
forms of possible accommodation and alternative solutions
8. Obligation of the employer as
per OHRC
• keep a record of the accommodation request and action taken
• maintain confidentiality
• implement accommodations in a timely way, to the point of
undue hardship
• bear the cost of any required medical information or
documentation (for example, the accommodation provider
should pay for doctors’ notes, psychological assessments,
letters setting out accommodation needs, etc.).
9. Obligation of the individual as
per OHRC
• make accommodation needs known to the best of their ability,
preferably in writing, so that the person responsible for
accommodation can make the requested accommodation.
• answer questions or provide information about relevant
restrictions or limitations, including information from health care
professionals, where appropriate and as needed
• take part in discussions about possible accommodation solutions
10. Obligation of the individual as
per OHRC
• co-operate with any experts whose assistance is required to
manage the accommodation process or when information is
needed that is unavailable to the person with a disability
• meet agreed-upon performance standards and requirements,
such as job standards, once accommodation is provided
• work with the accommodation provider on an ongoing basis to
manage the accommodation process
• discuss his or her disability only with persons who need to know.
11. Undue hardship
• The Code prescribes only three considerations when
assessing whether an accommodation would cause undue
hardship:
• cost
• outside sources of funding, if any
• health and safety requirements, if any.
12. Cost
• The Supreme Court of Canada has said “one must be wary of putting too low a value on
accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord
the disabled equal treatment.” The cost standard is therefore a high one.
• Costs will amount to undue hardship if they are:
• quantifiable
• shown to be 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
• The costs that remain after all benefits, deductions and other factors have been considered will
determine undue hardship. All projected costs that can be quantified and shown to be related to the
proposed accommodation will be taken into account. However, mere speculation (for example, about
financial losses that may follow the accommodation of a person with a disability) will not generally be
persuasive
13. Outside sources of funding
• To offset costs, an organization has an obligation to consider any
outside sources of funding it can obtain to make the accommodation.
Government programs, for example, may help to alleviate
accommodation costs.
• A person seeking accommodation is also expected to avail themselves
of any available outside sources of funding to help cover expenses
related to their own accommodation. Resources, such as government
services or programs, might be available to accommodate the needs of
people with disabilities that could also aid them at work, in their
apartment or while accessing a service.
14. Health and safety
• If an accommodation is likely to cause significant health
and safety risks, this could be considered “undue
hardship.” Employers, housing providers and service
organizations have an obligation to protect the health and
safety of all their employees, clients and tenants,
including people with disabilities, as part of doing
business safely, and as part of fulfilling their legal
requirements under Ontario’s health and safety laws.
The Code recognizes that the right to be free from
discrimination must be balanced with health and safety
considerations.
15. Fulfilling the duty to
accommodate
• 1-Accommodating employees with disability
• 2-Accommodating employees who abuse drugs or alcohol.
• 3-Accommodating employees religious beliefs and
practices.
• 4-Accommodating employees pregnancy and maternity
needs.
• 5-Accommodating employees family status.
16. 1-Accommodating employees with disability
• Ableism : a belief that sees a person with disability as less
worthy of respect and consideration, less able to
contribute and participate, or of less inherent value than
others.
• Providing alternative work
• Employee’s obligation to cooperate
17. Guidelines to consider by employers
for requests for accommodation
• Respond all requests for accommodation.
• Maintain communication with the employee throughout the process.
• Require appropriate information eg, medical
• Educate yourself
• Access if there is actually a need for accommodation
• Document all considering and assessments
• Clearly explain the results to the employee
• Maintain confidentiality.
18. 2- Accommodating employees who abuse drugs or
alcohol.
• Considered as disability.
• Employees dependent on theses substances are entitled
to accommodation.
• Employer provides the treatment time, does not bear the
treatment costs.
• Marijuana at work place – medicinal use
• What if the employee exhibits signs of impairment at
work?
19. 3-Accommodating employees religious beliefs and
practices.
• Time for prayer
• Religious days off- few must be paid
• Accommodate religious diversity at the work place.
22. Harassment
• The Code prohibits harassment on the basis of age. Harassment
means a course of vexatious comment or conduct that is known, or
ought reasonably to be known, to be unwelcome. The phrase "ought
to have known" introduces an objective element to the test.
• In addition, the Code prohibits creation of a poisoned environment. A
poisoned environment is a form of discrimination and can arise from
even a single incident. It may be created by the comments or actions
of any person, regardless of his or her status. The comments or
conduct do not have to be directed at a particular individual.
23. Defining sexual harassment
Section 10 of the Code defines harassment as “engaging in
a course of vexatious[8]
comment or conduct that is known
or ought to be known to be unwelcome.” Using this
definition, more than one event must take place for there to
be a violation of the Code.[9]
However, depending on the
circumstances, one incident could be significant or
substantial enough to be sexual harassment.
24. Examples of sexual and gender
harassment
• demanding hugs[18]
• invading personal space[19]
• unnecessary physical contact,[20] including unwanted touching,[21] etc.
• derogatory language and/or comments toward women[22] (or men, depending on the
circumstances), sex-specific derogatory names[23]
• leering[24] or inappropriate staring
• gender-related comment about a person’s physical characteristics or mannerisms[25]
• comments or conduct relating to a person’s perceived non-conformity with a sex-role
stereotype[26]
• displaying or circulating pornography,[27] sexual pictures or cartoons,[28] sexually explicit
graffiti,[29] or other sexual images (including online)
25. Examples of sexual and gender
harassment
• sexual jokes, including circulating written sexual jokes (e.g. by e-
mail)[30]
• rough and vulgar humor or language related to gender
• sexual or gender-related comment or conduct used to bully a person
• spreading sexual rumors (including online)[31]
• suggestive or offensive remarks or innuendo about members of a
specific gender
• propositions of physical intimacy
26. Examples of sexual and gender
harassment
• gender-related verbal abuse, threats, or taunting
• bragging about sexual prowess
• demanding dates or sexual favors
• questions or discussions about sexual activities
• requiring an employee to dress in a sexualized or gender-specific way[32]
• paternalistic behavior based on gender which a person feels
undermines their status or position of responsibility
• threats to penalize or otherwise punish a person who refuses to comply with
sexual advances (known as reprisal).
27. Sexual solicitation
• Section 7(3)(a) of the Code sets out a person's right to be free from
unwelcome sexual advances or solicitation from a person who is in a position
to grant or deny a benefit. This provision of the Code is violated when the
person making the solicitation or advance knows, or should reasonably know,
that such behavior is unwelcome.
• People who are in a position to confer, grant or deny a benefit or advancement
would include an employer, supervisor, manager, job interviewer, housing
provider, professor, resident don, teaching assistant, teacher, etc. Possible
benefits might include employment opportunities, job-related benefits such as
a promotion or bonus or favorable working conditions, housing benefits, a
good mark in a course or a positive reference, and other favors.
28. Promoting a harassment-free
work place
• Define workplace and sexual harassment
• Include awareness programs
• Process of complaining and action
• Employees to be encouraged to report
• Treat complains confidentially
• Investigate
• Circulate anti-harassment policy
• Train staff on policy and procedure.
29. Employee benefit plan
• Employment may not be denied or made conditional upon enrolment in a benefit or
similar plan, which makes a distinction based on a Code ground. The general rule of
non-discrimination in employment applies to pension plans, benefit plans and terms
of group insurance except where reasonable and genuine distinctions or exclusions
are based on age, marital status, family status or sex.
• An employee with a disability can be treated differently in a life insurance or benefit
plan where a pre-existing disability increases the risk to a high level. An employer
must compensate an employee with a disability if the employee is excluded from an
employee benefit, pension or superannuation plan or fund, or a contract of group
insurance between an insurer and the employer. The payment should be the same as
the amount contributed to the insurer for an employee without a disability.
