2. Definitions
The concepts below are key to building a strong understanding of Code-related discrimination and will be helpful in identifying it in retail settings. Unless otherwise noted, the definitions have been adapted from the OHRC’s Glossary of human rights terms.8
Discrimination is mistreating someone by either imposing a burden on them or denying them a privilege, benefit, or opportunity enjoyed by others, because of their race, citizenship, family status, disability, sex, or other personal attribute. Discrimination can take many different forms, including direct, indirect, subtle, and adverse effect discrimination9. A discriminatory intent or motive is not required to establish that discrimination has occurred – demonstrating that the conduct has a discriminatory effect is sufficient.
Stereotyping is attributing the same characteristics to all members of a group regardless of their individual differences. It is often based on misconceptions, incomplete information, and/or false generalizations.
Racism is a broader experience and practice than racial discrimination. Racism is a belief that one racialized group is superior to others. Racism can be openly displayed in racial jokes, slurs, or hate crimes. It can also be more deeply rooted in attitudes, values, and stereotypical beliefs. In some cases, people do not even realize they have these beliefs. Instead, they are assumptions that have evolved over time and have become part of systems and institutions associated with the dominant group’s power and privilege.
Racial discrimination is prohibited by the Code. It includes any action, intentional or not, that has the effect of singling out persons based on their race and imposing burdens on them that are not imposed on others. It also includes actions that withhold or limit access to benefits available to other members of society, in social areas covered by the Code. Race only needs to be one factor in a situation for racial discrimination to have occurred.
Racial profiling includes any action that relies on stereotypes about race, colour, ethnic origin, ancestry, religion, or place of origin, or a combination of these, rather than on a reasonable suspicion, to single out a person for greater scrutiny or different treatment. Racial profiling may not violate the Code on its own, however it can lead to racial discrimination, which can be a Code violation.
Consumer racial profiling is differential treatment in retail settings based on a perception of the consumer’s race or ethnic origin10. This can happen:
- when a racialized person is provided bad service in a retail setting, or not served at all, because of their perceived race or ethnicity, or
- when a racialized person is profiled as a suspected shoplifter and receives discriminatory treatment.
Intersectional discrimination is discrimination that occurs in relation to two or more Code grounds. Intersectional discrimination results from the combination of various forms of oppression which, together, produce something unique and distinct from any one form of discrimination standing alone11. Categories of discrimination may overlap, and individuals may suffer historical exclusion because of both race and gender, age and disability, or some other combination12.
Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.13 A pattern of behaviour or more than one incident is usually required to constitute harassment.14 It can involve words or actions that are known or should be known to be offensive, embarrassing, humiliating, demeaning or unwelcome.15
A poisoned environment is created by comments or actions that ridicule or insult a person or group protected under the Code and cause them to feel that the environment is hostile or unwelcoming. It violates their right to equal treatment with respect to services, goods and facilities, housing, and employment. The actions or comments do not have to be directed specifically at individuals. For example, insulting jokes, slurs, or cartoons about LGBT2SQ+ people or racial groups or pin-up photos that demean women all contribute to a poisoned environment for members of those groups.16
Endnotes
8 Ontario Human Rights Commission [OHRC], Teaching human rights in Ontario - A guide for Ontario schools, (2013) at Appendix 1; available online:https://www.ohrc.on.ca/en/teaching-human-rights-ontario-guide-ontario-schools/appendix-1-glossary-human-rights-terms https://www.ohrc.on.ca/en/teaching-human-rights-ontario-guide-ontario-schools/appendix-1-glossary-human-rights-terms
9 OHRC, Human Rights at Work – Third Edition, (2008) at section III.2; available online: https://www.ohrc.on.ca/en/iii-principles-and-concepts/2-what-discrimination
[10] Nova Scotia Human Rights Commission [NSHRC], Working Better to Serve All Nova Scotians, (2013) at 10; available online: https://humanrights.novascotia.ca/sites/default/files/crp-report.pdf
11] OHRC, An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims, (2001) at 3, which quotes: M. Eaton, “Patently Confused, Complex Inequality and Canada v. Mossop” (1994) 1 Rev. Cons. Stud. 203 at 229; available online: https://www.ohrc.on.ca/sites/default/files/attachments/An_intersectional_approach_to_disc rimination%3A_Addressing_multiple_grounds_in_human_rights_claims.pdf
12 Madam Justice L’Heureux-Dubé writing for the minority in Canada (A.G.) v Mossop [1993] 1 SCR at 645.
13 Code, supra note 4, section 10 (1).
14 OHRC, Guide to your rights and responsibilities under the Human Rights Code, (2013), at 10; available online: https://www.ohrc.on.ca/en/guide-your-rights-and-responsibilities-under-human-rights-code-0
15 OHRC, supra note 8, “Harassment”
16 Ibid., at Students’ Handouts – Fact Sheet #4