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5. Who is protected at work?

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a) Broad protection for “employees”

“Every person” has a right to equal treatment in employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, disability, age, marital status, family status and record of offences.

The Code does not define “employee.” However, because the Code is to be interpreted broadly, the Commission takes the position that the Code’s protection extends to employees, temporary, casual and contract staff, and other persons in a work context, such as people who work to gain experience or for benefits. This broad interpretation is consistent with a number of Tribunal decisions from across Canada.

The protections in the Code also apply to employees after hours and when they are not at their workplace.

Example: Two company employees work together on union business outside of work hours and outside of the workplace. One employee complains to the employer and the union that the other employee is harassing him when they travel to evening meetings together. Neither organization takes action to stop the harassment because they view it as a private matter between two individuals on their own personal time. Both the employer and the union may be held responsible for not meeting their duties under the Code.

People who are hired to work in or around a person’s home, such as a nanny, cook, cleaner or gardener, are also protected under the Code.

Example: A family employs a live-in caregiver from the Philippines. She is routinely subjected to racial and sexual harassment and sexual solicitation. She is entitled to file a complaint alleging discrimination in employment.

b) Temporary and casual staff

Case law and tribunal decisions recognize the power imbalance between an employer and a temporary employee, especially where the worker earns low wages in a relatively unskilled job.[32] The Code protects temporary and casual staff no matter how long the person has worked for the organization or the nature of the employment.

Example: A woman was paid for a one-week period to strip at a club. A decision not to extend this casual arrangement for another week because of the woman’s race was found to be discrimination in employment.

The protections in the Code apply even if a person is not actually an employee but was sent by an employment agency. See also Section III-4e) – “Employment agencies.”

c) Personnel under contract

The definition of “employee” in the Code is interpreted broadly enough to include contractors, even if they would not be considered “employees” for the purposes of other legislation. A human rights tribunal may be skeptical of claims by an employer that a person doing work for them is not protected by the Code because he or she is a “contractor” rather than an “employee.”

Example: A company says that a person is a “subcontractor” rather than an employee. The person is assigned particular cleaning tasks by the company through contracts the company obtains, she is supervised by the company, and she does not run a business in her own right. She is found to be an employee within the meaning of the Code and entitled to the protections in the Code.

Beyond this, contractual relationships are also protected as a distinct “social area” under the Code. A contract is an oral or written agreement that is legally enforceable. Employment arrangements are a form of contract. The Code covers all types of contracts, including those with independent contractors and subcontractors, and contracts that outline terms of employment. Under section 3 of the Code, anyone who is legally capable of entering into a contract has the right to do so equally with any other person without being discriminated against because of one of the grounds in the Code.

Similarly, subsection 26(1) of the Code states that it is a condition of every contract signed with an Ontario Government ministry or agency that no person may be discriminated against in carrying out that contract. This includes Ontario government loans and grants. The contract, loan, grant or guarantee can be cancelled if a human rights tribunal finds that a person employed under the contract has been discriminated against while it was in effect.

d) Volunteers and unpaid workers

In many cases, access to and the experience gained from volunteer opportunities are key parts of a strategy to get paid employment for people with disabilities, for caregivers who have been out of the workforce and for other people who are underemployed due to other Code grounds, such as age and race. Volunteer work is also a crucial way for newcomers to get the experience they need to overcome a common discriminatory obstacle: requiring “Canadian work experience.”

The Code does not refer specifically to volunteers, but the Commission takes the position that the phrase "equal treatment with respect to employment" in section 5 can be interpreted to protect anyone in a work-like context. This includes volunteer services and people who work without a salary to gain experience, such as people on a practicum or who are being mentored. It also covers persons who work for benefits. For example, the Code applies when a non-profit organization seeks volunteers to provide counselling or when volunteers are hired to conduct fundraising. While there have been no Ontario decisions on these issues, some British Columbia decisions found that the province's human rights law applied to discrimination against a volunteer, under the areas of employment and services.

When deciding which volunteers should have further opportunities, whether paid or unpaid, take care to make sure that Code grounds are not influencing such decisions.

Example: Some volunteers at an after-school program will be selected for full-time employment as summer camp counsellors. Based on his observations over the year, the camp director chooses the volunteers he knows best and who can most easily perform the heaviest tasks around the camp, such as lifting canoes. This informal process tends to exclude racialized women and volunteers with disabilities. In the end, eight out of the 10 volunteers who are offered paid employment are young White men without disabilities. Even if none of the volunteers was ever guaranteed a job, this process would likely infringe the Code.

e) Probationary employees

Employees are protected from discrimination or termination contrary to the Code even during a probationary period. Employers must provide probationary employees with the same human rights protections as other employees, including accommodation, a healthy work environment and non-discriminatory discipline, up to and including termination.

The Employment Standards Act provides that written notice of termination is required if an employee has been continuously employed for three months or more. In comparison, there is no threshold date upon which the rights in the Code apply to new employees. All employees are protected under the Code at any point in their employment.

Even if there is a provision in a collective agreement that allows for termination within three months of the date of hire, the Code continues to apply. This means that if probationary employees are dismissed during a probationary period for reasons connected to a Code ground, they could claim discrimination.

Example: An employee is hired on a 12-month contract and is subject to a three-month probationary period. On starting the job, the employee requests, but is not provided with, accommodation for her disability. Before the three-month period expires, the employee is fired because she did not perform as well as expected. The fact that the employee’s employment was terminated during the probationary period would not provide the employer with a defence to a complaint of discrimination by this employee.

See also Section IV-11f) – “Extending probation” and Section IV-13b(i) – “Firing a probationary employee.”

f) Medical and personal attendants

Persons hired as medical or personal attendants have a right to equal treatment under the Code. There are some exceptions about hiring that are discussed in Section III-3l) – “Sex” and Section IV-5d) –“Hiring based on Code grounds if a special employment exemption applies.” However, once the person is hired, all the protections in the Code apply.

g) Union members

Members of vocational associations, including unions, are protected from discrimination. Although this is a distinct “social area” under the Code, the protections may overlap with those under the social area of “employment.”

h) Non-employees

An employer has a duty to prevent discrimination and harassment against clients, vendors, service-users, friends and family members of employees and other non-employees who may be visiting the workplace or affiliated with the workplace. Workplace policies should set out standards for behaviour that apply to everyone in the workplace, including visitors and non-employees.

[32] Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 at para. 92. applied in Szabo v. Poley, 2007 HRTO

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