The right to “equal treatment with respect to employment” protects persons in all aspects of employment, including applying for a job, recruitment, training, transfers, promotions, terms of apprenticeship, dismissals, layoffs and terminations. It also covers rate of pay, codes of conduct, overtime, hours of work, holidays, benefits, shift work, performance evaluations and discipline. A fundamental starting point for complying with the Code in relation to all of these is to have a workplace setting where human rights are respected and applied.
This part of Human Rights at Work sets out key principles and best practices relating to the human rights issues that most commonly arise in the employment cycle. Key areas to consider include:
- Creating a workplace that complies with the Code
- Setting job requirements
- Designing application forms
- Interviewing and making hiring decisions
- Requesting job-related sensitive information
- Pay, benefits, dress codes and other issues
- Meeting and accommodating the needs of employees
- More about disability-related accommodation
- Training, promotions and advancement
- Managing performance and discipline
- Resolving human rights issues in the workplace
- Ending an employment relationship
1. Creating a workplace that complies with the Code
In Ontario, about three-quarters of all human rights complaints come from the workplace. The best defence against these complaints is for employers to be fully informed and aware of the responsibilities and protections the Code includes. Organizations should also be proactive in creating fair and equitable workplaces where human rights are respected.
Organizations, including employers, have a number of legal obligations under the Code. They have the ultimate responsibility for making sure the work environment is healthy and inclusive, and for preventing and addressing discrimination and harassment. They must make sure that their workplaces are free from discriminatory or harassing behaviour. Meeting these responsibilities may lead to the following types of benefits:
- attracting, recruiting, promoting and keeping the best employees
- maximizing the potential and performance of those employees
- minimizing employee frustration, stress, burnout and turnover
- reducing conflicts between employees
- increasing employee loyalty
- building or maintaining a reputation as a fair and progressive employer.
Savvy employers will be planning ahead to make sure that their organizations are able to respond appropriately to changing demographics in the province and in the workplace. Based on government data and other research, the Conference Board of Canada makes the following predictions for the period between 2006 and 2030:
- labour demand is predicted to exceed labour supply by 2014 with a shortfall of workers that increases year by year after that
- women make up 48% of the workforce, and the number of women in the workforce, including women over age 65, is expected to grow
- today, 12.9% of the population is 65 and over and by 2030, 20.6% of the population will be 65 and over
- Ontario has the highest proportion of people born outside the province
- in 2005, 54% of Canada’s total number of new immigrants settled in Ontario
- it is expected that immigration will account for approximately 84% of the total annual increase in Ontario’s population by 2030
- in 2001, Statistics Canada data showed that one in five Aboriginal Canadians lived in Ontario and estimates are that Ontario will continue to have the highest density of Aboriginal peoples of any province (with about 267,700 expected to live in Ontario in 2017)
- in 2001, there were 1.5 million people with disabilities in Ontario, or 13.5% of the province’s population, according to Statistics Canada. In 2026, most people with disabilities in Canada (and Ontario) will be 65 or older.
While discriminatory barriers to access to the workforce continue to exist for persons identified by the Code, organizations such as the Conference Board of Canada note that the nation’s productivity and ability to compete require that such persons be included. It has called for action to tap into the population of youth, women, older persons, newcomers, Aboriginal people and people with disabilities that are underused in the provincial labour market.
Given the demographics described above, human rights in employment are not a minor concern, of interest only to some employers in relation to a small percentage of employees and prospective employees. Rather, human rights in employment are a significant concern affecting all employees, prospective employees and employers at one point or another. Implementing the measures outlined in this section will help employers on the path to an inclusive and diverse workplace.
a) Strategy to prevent and address human rights issues
A complete strategy to prevent and address human rights issues should include the following parts:
- A plan for preventing, reviewing and removing barriers
- Anti-harassment and anti-discrimination policies
- An internal complaints procedure
- An accommodation policy and procedure
- An education and training program.
An effective strategy will combine all of these parts, and will be based on commitment from senior levels of the organization and consultation with employees or, in some cases, community organizations. Policies, plans and procedures must be appropriate for the size, complexity and culture of an organization, and must be communicated effectively to employees and other people in the work environment. Policies, plans and procedures should be reviewed and revised periodically so they remain up-to-date and effective. In some cases, specialized assistance from lawyers or other experts may be needed when developing policies, plans and procedures.
For more information, see the Commission’s newly revised policy statement, “Guidelines on Developing Human Rights Policies and Procedures.” This policy provides practical guidance to help organizations develop effective and fair ways to prevent and respond to human rights issues. In particular, employers and other organizations may find the sample wording to be of help when discussing and developing their own internal policies and procedures.
i) Preventing, reviewing and removing barriers: Inclusive design:
Workplaces should be designed to include everyone who works there, regardless of sex, race, creed, family status, disability or other Code grounds. When setting up new rules, policies and procedures, buying new equipment or designing work stations, etc., employers should make choices and decisions that do not create barriers for persons protected under the Code. For example, break policies should take into account, where possible, the needs of pregnant or breastfeeding women, persons whose religion may require them to take time to worship during the work day, and the needs of persons with disabilities. This means that employers should take a proactive approach, incorporating a human rights mindset into all that they do.
Example: The manager of a customer service department will be upgrading the department’s computer and phone systems in the new year. The new computer and/or phone systems should include enhanced options for large fonts, brighter lighting and volume. All such options would give all existing and future workers the ability to adjust for visual or hearing impairments that exist or might develop.
Reviewing barriers: The methods used and type of barrier review done will depend on the size, nature and complexity of the organization. When reviewing for barriers, employers should examine:
- Physical accessibility
- look for barriers to equal access for persons with disabilities, including persons with sensory, environmental or intellectual disabilities
- comply with the Code and not just minimum standards under the Building Code or applicable standards under the Accessibility for Ontarians with Disabilities Act (AODA). Compliance with the Building Code or AODA standards does not ensure that facilities are barrier-free, or meet the accessibility requirements of the Code. Compliance with the Building Code or AODA standards is not a defence to a human rights complaint under the Code. See also Appendix B for information about the Building Code and the AODA and related standards.
- Organizational policies, practices and decision-making processes:
- look for barriers in policies and practices on recruitment, selection, compensation, training, promotion and termination, etc. Are there areas in which decisions are made based on subjective views rather than objective considerations?
- consider both informal and formal practices and processes.
- Organizational culture:
- think about the culture of the workplace. Consider how people interact, and what kinds of traits and characteristics are valued
- how might this exclude people who are not from the dominant culture?
Removing and preventing barriers: Where systems and structures already exist, organizations should be aware of the possibility of systemic barriers, and actively seek to identify and remove them.
Systemic barriers are obstacles of any kind that can prevent employers from identifying the best people for jobs, promotions and training opportunities, and prevent employees protected by the Code from maximizing the use of their abilities. A systemic barrier is often not just a single rule or policy, but a series of policies and/or procedures that, when combined, result in the exclusion of people identified by a Code ground.
Where barriers have been identified, employers must remove them rather than making “one-off” accommodations, unless to do so would cause undue hardship. Removing existing barriers maximizes integration with the environment, so that everyone is able to participate fully and with dignity. Identifying and removing systemic barriers in the workplace also makes good business sense. It may reduce and prevent human rights complaints from being filed, and can make facilities and procedures more comfortable for other groups such as seniors and for all people in general.
Plans for removing barriers should:
- set specific, measurable goals for the removal
- create clear timelines for achieving these goals
- allocate adequate resources towards meeting goals
- ensure accountability and responsibility for meeting goals
- include a way to regularly review and evaluate progress towards the identified goals.
ii) Anti-harassment and anti-discrimination policies:
Anti-harassment and anti-discrimination policies make it clear that harassment and discrimination will not be tolerated, and set standards and expectations for behaviour. Related complaint procedures set out how potential violations of these policies will be addressed in an employment context. Many organizations choose to combine their anti-harassment/anti-discrimination policies and procedures into a single document. The elements of each are discussed separately in this section and the one below.
While the primary focus of policy development may be on the organization as a workplace, it is also important to make sure that any human rights policies in place cover the organization’s other roles. For example, human rights policies developed by a school board would be expected to protect the human rights of the teachers and staff employed by the school board as well as those of the students. Visitors to the workplace, such as clients and contractors, need to be made aware of the employer’s anti-discrimination and anti-harassment policies and understand that they will be expected to respect such policies.
Employees also need to be made aware that although they have rights in the workplace as employees, they also have responsibilities to the public. Employers and employees share a responsibility to provide equal treatment, including accommodation to the point of undue hardship, and an environment that is not poisoned by comment and conduct that are contrary to the Code.
Anti-harassment and anti-discrimination policies should include the following parts:
- state clearly the organization’s commitment to creating and maintaining respect for human rights, and fostering equality and inclusion
- describe the objectives of the policy, such as promoting human rights within the organization, preventing harassment and discrimination, and setting out standards for appropriate workplace behaviour
- set out the activities and persons it applies to, noting that the protections for employees apply broadly (including probationary employees and volunteers) and in all contexts (such as when they are working off-site or outside of normal hours)
- list and explain the grounds protected in the Code
- employers may choose to extend protection beyond that mandated by the Code. For example, they may choose to prohibit any form of psychological harassment, or prohibit discrimination and harassment based on political opinion
- define key elements of, and concepts relating to, harassment (for example, that it includes conduct that should be known to be unwelcome and that a finding of harassment could be made even if a victim has not overtly objected)
- define key elements of, and concepts relating to, discrimination (discrimination is not always overt – it may be systemic or subtle)
- introduce the concept of a poisoned environment (one comment may be enough)
- set out roles and responsibilities
- all persons in the workplace are expected to uphold and abide by the policies
- managers and supervisors must prevent or stop discrimination and harassment.
iii) Procedures for resolving complaints:
Employers who do not have effective complaint mechanisms in place may be found to have failed in their duty to address discrimination and harassment. At minimum:
- complaints must be taken seriously
- they must be acted upon promptly when received
- appropriate resources must be applied to resolve complaints
- a viable complaint mechanism must be in place and have been communicated throughout the organization.
- the complaint procedure must ensure a healthy work environment is created and maintained for the complainant
- decisions/actions taken by the organization must be communicated to the parties.
It is open to an employer to tailor the approach that works best for them. Some organizations will adopt very formal mechanisms; others may opt for a simpler approach. There is no one perfect complaint mechanism; each organization must tailor its own approach, taking into account such factors as its mandate, size, resources, and culture. The following elements could be included in an organization’s complaint procedure and are discussed in more detail in the Commission’s Guidelines on Developing Human Rights Policies and Procedures.
- provide access to expert information and advice for persons who have witnessed or been subjected to harassment and discrimination
- the person providing such advice should not act as mediator, investigator or advocate for the organization, and should not be pressured to suppress complaints
- make it clear to employees that using the internal complaint procedure does not affect their right to file a human rights complaint within the applicable time limit (effective July 1, 2008, extended to one year)
- set out a process for making an internal complaint (although complaints should be accepted any way they are filed)
- an employee may be vulnerable or fear reprisal and should not be required to address the matter directly with the potential respondent before filing a complaint
- clearly state that it is wrong to penalize someone for asserting their human rights, helping someone do so or acting as a witness (this is called reprisal)
- a person who is subject to reprisal should also be able to file a complaint under the complaint procedure
- provide for an objective investigation by a qualified person and a separate process of dispute resolution (for example, mediation, conciliation or arbitration)
- the person should know human rights principles, the requirements in the Code, the complaint procedures and relevant techniques (for example, how to investigate or resolve conflict), and should not have direct authority over the people involved or be viewed as on one person’s side
- the process should be impartial, timely, fair and address all relevant issues. It should include a report summarizing the outcome of the investigation based on witness interviews, steps taken and recommendations
- indicate that people involved in an internal complaint resolution process are allowed to have someone with them during a mediation or investigation, or when speaking to management. Representatives may include a union steward, a colleague, family member or lawyer
- ask people to keep written notes about what happened, when it happened, where it happened and who saw it happen or knows of it (including witness names) and gather relevant documents
- protect confidentiality and privacy of the person bringing forward the complaint and the person(s) the complaint has been made against. Share information only with the people who need to know
- describe potential outcomes
- if harassment or discrimination is found to exist, the employer must take all steps needed to remedy the effects of discrimination and to make sure it stops. Consider what a complainant needs to be “made whole” and any broader issues that should be addressed across the whole workforce
- if a complaint is unfounded, a complainant should not normally be penalized
- include disciplinary consequences for people who have violated the policy, such as education, suspensions, transfers or termination of employment
- commit to communicate the outcomes to the parties.
iv) Accommodation policy and procedure:
A clear and effective accommodation policy and procedure makes sure that people feel comfortable raising their accommodation needs relating to any Code ground, and that accommodation requests are effectively dealt with. The process is as important as the accommodation itself. It must be effective and must respect the dignity of accommodation seekers. Some accommodations are very simple and straightforward and no formal process is needed. In other cases, the process and the accommodations themselves are more complex. The principles of dignity, individualization, inclusion and full participation apply to both the process and the actual accommodation. For more information on the principles and process of accommodation, see Section IV-8 – “Meeting the accommodation needs of employees on the job” and Appendix E – “Accommodation template for employers.”
Content of the policy: An accommodation policy and procedure should include the following elements:
- a clear statement of the organization’s commitment to providing an environment that is inclusive and barrier-free, and to providing accommodation to the point of undue hardship
- a clear set of objectives – for example, tell employees their rights and responsibilities under the Code related to accommodation, and give information on the accommodation process and who is responsible
- describe the scope – the policy should apply to all employees (including people on probation or who volunteer) or, potential employees who may be applying for positions
- outline a process for accommodation requests to be made and dealt with(accommodation should be offered to persons who are clearly unwell, or who are perceived to have a disability)
- the request should identify the relevant Code ground, the reason why accommodation is needed (including enough information to confirm the existence of the need), and the specific needs related to the Code ground
- state that all accommodation requests will be taken seriously and that no employee or service user will be penalized for making a request.
- identify what information will be collected, under what circumstances, and how it will be kept. Make sure you keep this information private and confidential.
- refer to the shared responsibility for accommodation – must work together cooperatively, share information and avail themselves of potential accommodation solutions
- document the accommodation program and any accommodation plan including stating needs, expert assessments, goals, timelines and accountability
- highlight principles:
- accommodation will be appropriate where it results in equal opportunity to attain the same level of performance or to
- enjoy the same level of benefits and privileges as other workers
- respects principles of dignity, inclusion and individualization
- accommodation provided will be measured against a high standard (undue hardship) and the onus is on the employer to prove that undue hardship exists if a complaint is made
- if the most appropriate accommodation would result in undue hardship, the organization will consider other alternatives, such as phased-in or next-best accommodations
- the procedures for monitoring and improving the accommodation
- a statement explaining the right of employees to seek remedies under the Code by making a human rights claim within the applicable time limit.
v) Educate and train employees on policies and procedures:
Education and training are key parts of any organization’s human rights strategy. However, they do not instantly “cure” a workplace of human rights issues. For example, education and training alone will not remove systemic barriers. Education works best along with a strong proactive strategy to prevent and remove barriers to equal participation, and effective policies and procedures for addressing human rights issues that do arise.
An effective human rights education program will include training on:
- organizational policies and procedures relating to human rights
- the principles and specific provisions of the Code
- general human rights issues such as racism, ableism, sexism, homophobia or ageism.
Training must be provided regularly and geared to meet the specific needs of employees who are responsible for:
- complying with policies (everyone)
- implementing policies (managers, supervisors)
- providing expert advice, ensuring compliance (human resources)
- overall human rights strategy (the board, senior management, president or CEO).
Education and training checklist
For top level managers (CEO, Board of Directors, president, senior managers):
- Are they aware of the Code, human rights issues and principles of discrimination and harassment?
- Are they clear on their personal and organizational responsibilities? For example, if they discriminate or do not stop discrimination they know about, do they know that they may have to pay damages out of their own money?
- Do they understand they have ultimate responsibility for ensuring Code compliance and how to accomplish this? If not, external expert advice and training should be sought.
- Are there policy statements and reminders posted around the workplace to remind staff and visitors that the organization takes human rights seriously?
- Have they made sure that training has been provided to the other categories of employees as described below? If they do not have the expertise internally, external expert advice and training should be sought.
- How can they get information about new human rights developments such as changes to internal policies, Commission policies or new court decisions on an ongoing basis?
For internal trainers, advisors, conflict resolvers and investigators:
- Have employees responsible for training, resolving complaints, employee advice or investigation received specialized training on how to perform these tasks and the human rights principles that apply?
- Are they clear on their personal and organizational responsibilities?
- Is information about new human rights developments such as changes to internal policies, Commission policies or new court decisions provided on an ongoing basis?
For managers and supervisors:
- Are they aware of the Code, human rights issues and the principles of discrimination and harassment?
- Are they clear on their personal and organizational responsibilities? For example, if they discriminate or fail to stop discrimination they know about, do they know that they may have to pay damages out of their own money?
- Have they been clearly told that the Board of Directors, CEO or senior management expects them to actively work to create a culture of rights in their workplace?
- Have all managers received training on how to respect the Code in all stages of employment (for example, when drafting job duties, advertising, conducting interviews, assessing qualifications, disciplining or terminating employment)?
- Is information about new human rights developments such as changes to internal policies, Commission policies or new court decisions provided on an ongoing basis?
For new and existing employees:
- Are they aware of the Code, human rights issues and the principles of discrimination and harassment?
- Are they clear on their personal responsibilities? For example, if they harass or discriminate against another employee, do they know that they may have to pay damages out of their own money?
- Have all employees been informed of the internal policies and procedures on discrimination and harassment, complaint procedures and accommodation?
- Have many new employees joined the organization since the last orientation or training session when human rights issues were covered? If so, what is needed to bring them up to date?
- Is information about new human rights developments such as changes to internal policies, Commission policies or new court decisions provided on an ongoing basis?
For employees on health and safety committees, in internal human rights or diversity offices, or other people responsible for planning and implementing accommodation solutions in the workplace:
- Are they clear on their personal responsibilities? For example, if they fail to explore and implement accommodation options, do they know that they may have to pay damages out of their own money?
- Are they aware of the applicable Code principles? In particular, that:
- Appropriate accommodation must be provided and that the standard of undue hardship is a high one;
- Health and safety risks should only be assessed once accommodation has been provided;
- Compliance with other legislation is not a defence to a breach of the Code?
Anti-racism training: While diversity is an important element of building an inclusive workforce, it is only one part. We also know that anyone, even a racialized person, can engage or take part in discrimination. It is therefore necessary to supplement efforts at increasing diversity with strong human rights and anti-racism training initiatives as part of an anti-racism organizational program. For more information on anti-racism organizational programs, refer to Section IV-1f) – “How to prevent and respond to racism and racial discrimination.”
Anti-racism training should not emphasize ”cultural sensitivity” or ”tolerance” or seek to deal with issues by exclusively promoting the values of ”diversity” and ”multiculturalism.” The goal of training should be to provide employees with the skills and knowledge to act in a way that is anti-racist, non-discriminatory, professional, respectful, inclusive, and ethno-culturally sensitive both towards each other and the people that they serve.
b) Make sure collective agreements comply with the Code
Employers can not contract out of the minimum standards in the Code. When negotiating provisions in collective agreements, unions and employers are both responsible for making sure that they comply with the Code’s requirements. Employers and unions need to make sure that the collective agreement’s provisions do not discriminate, and do not have any unintended discriminatory consequences.
In some cases, human rights complaints are filed because of job actions such as strikes and the withdrawal of services. The duty to accommodate the needs of persons who use services provided by the organization should be considered by both employers and unions in advance of job action affecting access to such services. For example, the Commission has recommended that school boards and unions representing educational assistants discuss options such as closing schools or contingency planning in advance of a strike. The employer and union are expected to work together to make sure that the collective bargaining process does not impact more severely on students with disabilities compared to students without disabilities. Similar considerations may apply in other contexts where employees provide services to the public. See also Section III-4d) – “Unions.”
c) Plan and implement a special program
Section 14 of the Code permits special programs in employment that would otherwise infringe the Code. Special programs help people who experience discrimination, economic hardship or disadvantage to achieve equality. Special programs counter the effects of discrimination through measures that create jobs, provide specialized services or other opportunities. The Commission’s Guidelines on Special Programs provide detailed information on how a special program can be planned, implemented and monitored.
To be a “special program” under the Code, a program must satisfy one of the following goals:
- relieve hardship or economic disadvantage
- help disadvantaged persons or groups achieve equal opportunity
- contribute to eliminating the infringement of rights protected under the Code.
It is important to make sure that people know that a special program exists, and that there are restrictions or limits on who is eligible to apply for a job, or who is entitled under a special program to get certain services.
Example: A job program for people under 25 is put into place to combat youth unemployment. The job ad for this program should clearly explain to potential applicants or to the public that the position is part of a special program designed to help youth under age 25.
i) Clearly define who is eligible:
The program should clearly identify who it is intended to help:
- identify the grounds under the Code (such as race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability, record of offences)
- identify the persons or groups who are experiencing hardship or economic disadvantage.
Take care to make sure that the program is not unreasonably restrictive, especially when the restrictions might themselves be considered discrimination under the Code. You will need to have a rational connection between restrictions in eligibility and the purpose of the special program itself.
Example: Based on information from Statistics Canada that shows children from low-income families are chronically unemployed, Sunny Times Community Services develops and implements a summer employment program only for high school students from low-income families. This would be an acceptable approach.
Example: A program offering money to blind people who buy reading devices is limited to young people. This is found to discriminate against older people applying to the program because there is no logical connection between the age restriction and the purpose of the program.
ii) Reasons for the program:
The special program should also:
- state clearly the reasons why the identified persons or groups are considered to be experiencing hardship, disadvantage or discrimination
- explain how the proposed program will relieve this hardship, economic disadvantage or discrimination, or how it will help to achieve equal opportunity
- state that the special program is temporary, lasting for a set time.
Evidence of hardship or disadvantage should be objective and, where possible, quantifiable. It should not be subjective or based on personal impressions. When developing a special employment program, ask, “Is there a real problem and does this program address it?”
Collecting data for monitoring and evaluating special programs is allowed by the Code. Data can also be collected if the information is used to demonstrate under-representation of particular groups or other forms of hardship or disadvantage. Data collection of this type can, for example, help an employer learn the racial background of its workforce, to put a program in place.
Example: An employer is planning to expand the company and hire new staff. The employer conducts a work survey to see whether the workforce make-up is like that of the community it serves. Employees are asked to voluntarily self-identify and submit the information anonymously to a third party consultant who is not involved in employment decisions.
Statistics collected regularly also provide a way to assess the results of special programs, and can serve as a tool for assessing the need for further measures.
The Code does not specify how or even if data should be collected. There are some standard ways to identify groups within or served by an organization:
- conduct voluntary self-identification
- have an employee conduct the survey
- use an external consultant or expert to collect the data.
Each method has advantages and disadvantages in terms of costs, rate of return, accuracy of results and protecting the privacy of the individual. Self-identification surveys are a commonly used way to collect such information. Employers should select the method that best suits the program goals and organizational culture.
Privacy and dignity should always be a concern when collecting this kind of data. Organizations subject to freedom of information and protection of privacy legislation should make sure that the identification method they choose complies with those laws.
Private sector employers should also collect data in a way that respects dignity and privacy. For example, organizations can develop internal policies on privacy, or codes of ethics.
Participants should be told how the information will be used. This assurance will help them feel more comfortable when asked to provide the information. Data collected for a special program must be used for special program purposes only. For this reason, storage and access should be carefully controlled.
iii) Follow a plan:
A special program should contain the following parts:
Consultation: appropriate steps should be taken to identify and consult with people who may be affected by the proposed special program.
Develop a plan: The program provider should prepare a plan that includes the following information:
- an outline of how the special program will be implemented, including terms and conditions of the program
- how long the program will run
- special measures to be taken
- goals, timetables and expected results.
iv) Monitoring and evaluation systems:
The program should include a way to monitor and evaluate the progress towards the desired results. It is important to:
- evaluate whether the program is effective
- designate who, within the organization, is accountable for the program
- communicate program results to the organization and/or its client groups.
d) More about reviewing, preventing and removing barriers related to disability
Many employees will have a disability at one point or another, or may be associated with someone with a disability. Given the real risks of human rights complaints in the workplace relating to disability, it makes good business sense to plan for accessibility. This section offers more detail on steps employers can take to make sure workplaces are designed inclusively and are accessible to persons with disabilities.
i) Reviewing barriers – accessibility for persons with disabilities:
Preventing and removing barriers means persons with disabilities should have access to their environment, and face the same duties and requirements as everyone else, with dignity and without impediment. Employers should consider developing accessibility review plans, making reviews and implementing the needed changes to make facilities, procedures and services accessible to employees with disabilities, as well as to clients or customers with disabilities.
The Code's guiding principles on accessibility for persons with disabilities are:
- Does the requirement allow the person with a disability access that ensures equality of outcome ("substantive accessibility")?
- Does the requirement result in approximately equal levels of convenience?
- Has the dignity of the person been respected?
ii) Tips for an accessibility review:
Conducting an accessibility review will show how accessible an organization is to persons with disabilities and what needs to be done to remove barriers. A comprehensive accessibility review plan should:
- state the purpose of the review along with the reasons, context and guidance for conducting a review
- state an organization’s obligations under the Code to ensure accessibility for employees, clients or customers with disabilities
- identify internal and external resources that would provide guidance for conducting the review
- summarize current internal and external initiatives
- identify quality service measures
- outline the scope of the review and identify potential barriers as they may relate to procedures and practices, facilities, services and communication
- outline time frames and responsibilities for conducting an accessibility review of the organization
- outline a communication plan for the accessibility review, so that senior management, staff, members, clients, etc. know about and support the initiative and its purpose.
Results of an accessibility review should be documented in a Summary of Findings and Recommendations Report and submitted to senior management. Senior management should make the results available to everyone concerned, along with a plan for removing the barriers.
iii) Examples of barriers for persons with disabilities:
When considering barriers for persons with disabilities, it is important to keep in mind that there are many kinds of barriers that may prevent full participation. The Ministry of Community and Social Services lists the following as examples:
- architectural and physical barriers (for example, the design of the building, the size of doorways). Objects added to the environment, such as furniture or bathroom hardware, may also be physical barriers
- information or communication barriers (for example, print materials with fonts that are too small)
- attitudinal barriers (for example, thinking that a person with a disability is inferior or cannot understand you)
- technology barriers (for example, websites that cannot be read with screen-reading software)
- systemic barriers (for example, hiring policies and practices that make it hard for a person with a disability to compete).
iv) Complying with the Building Code and AODA Standards is not enough:
Complying with the Code often requires that an employer exceed the minimum requirements in the Ontario Building Code Act (Building Code) and any applicable standards under the Accessibility for Ontarians with Disabilities Act (“AODA”).
The Building Code may not deal with the needs of persons with non-mobility-related disabilities, such as mental disabilities, learning disabilities, low vision or hearing disabilities. For example:
- directional indicators for elevators and exits may help persons with memory disorders
- tactile signage would help persons with low vision in matters as basic as finding the correct floor on an elevator and entering the right washroom
- alarm systems with visual as well as auditory signals can help alert persons who are deaf, deafened or hard of hearing in an emergency.
While the above are not required under the Building Code, it may be unacceptable from a human rights perspective to not include these features.
Similarly, standards under the AODA may state that the requirements do not apply until some date far in the future, or fail to refer to the standard of undue hardship. Employers are still responsible for accommodating the needs of people with disabilities to the point of undue hardship under the Code even if this is not required under the applicable AODA standard. See Appendix B for more information about the Building Code and the AODA and related standards.
e) More about how to proactively identify and address systemic discrimination
The Commission expects employers to be proactive in identifying and addressing systemic discrimination. This is a critical part of a barrier review and removal process, or of developing a special program, as are discussed earlier.
Systemic discrimination can be identified through three elements: organizational culture, numerical data, and policies, practices and decision-making processes. Employers can use the following principles to identify and address systemic discrimination:
i) Organizational culture:
This can be described as shared patterns of informal social behaviour, which are the evidence of deeply held and possibly unconscious values, assumptions and behavioural norms. Communication styles, interpersonal skills and leadership abilities are qualities that reflect dominant norms and an organization’s culture. When persons protected by the Code are assessed against such subjective qualities, difficulties may arise.
Example: A White man’s straightforward communication style leads co-workers to appreciate him as a “straight talker.” An African Canadian woman’s similar style results in her being characterized as “abrupt.”
Example: A mother of small children finds that, although she completes her work efficiently and her manager considers her a good performer, her co-workers assume that she is not “pulling her weight” because she does not regularly stay late at the office, and she is therefore the subject of gossip and resentful comments.
A related issue can be an organization’s tendency to undervalue the strengths and contributions of persons identified by Code grounds.
Example: A Chinese Canadian teacher is placed on a surplus list because he lacked experience with a set list of extra-curricular activities. In making the list of “extra-curricular activities,” the principal did not include activities that Chinese immigrants would be likely to take part in, and included activities that Chinese immigrants would be unlikely to take part in. As a result, his experience was not counted.
Example: An older gay police officer relies on well-honed skills to de-escalate situations of violence. The officer is asked if he is still “up to the job,” or “man enough” to use his weapons. The fact that this officer is applying advanced techniques developed through extensive training is not recognized.
Social relationships and networks are also an important part of organizational culture. Such networks can allow some people to know how to succeed in an organization, while other people are excluded from learning this critical information. Social relationships can result in perceptions about whether a person “fits” within an organization or is seen as an outsider.
Example: A firm has a recruitment strategy that pays a bonus to any senior employee who refers a potential candidate to the HR manager, if that candidate is hired. Employees are asked to tell their friends and social networks, such as hockey teams. Applicants who are recommended this way are hired more often than people who answered a posted ad. After they are hired, recommended candidates are given a smoother introduction to the firm than other people who do not know anyone. This kind of informal process tends to advantage people who share the same characteristics as the recruiter and senior employees and has a negative impact on employees with disabilities, women and racialized people.
ii) Numerical data:
Numerical data that demonstrate that members of certain groups are disproportionately represented may indicate systemic or other forms of discrimination. On its own, numerical data does not usually prove systemic discrimination. However, such data may be strong circumstantial evidence that inequitable practices exist.
Example: Data may show that women with young children are under-represented in senior positions and over-represented in entry-level positions. This may indicate inequitable practices in hiring, training, promoting and accommodating persons identified by sex and family status. The organization would also need to look at its culture and policies, practices and decision-making.
Example: Data may show that the percentage of racialized employees in an organization is much lower than what would be expected based on the availability of qualified individuals in the population or in the applicant pool. This may mean that there is systemic discrimination in hiring or on-the-job discrimination resulting in a failure to retain racialized persons. The organization would also need to examine its culture and policies, practices and decision-making.
iii) Policies, practices and decision-making processes:
The Supreme Court of Canada has said that systems must be designed to include all persons. Formal and informal systems should be structured so they meet the needs of everyone, rather than only people who are members of the dominant group. Policies, practices and decision-making processes that do not take into account the realities of persons identified by Code grounds may lead to exclusion, and result in systemic discrimination.
Example: The language and content of questions on a standard test are based on mainstream White culture, and have the effect of screening out racialized persons and recent immigrants. Recognizing this, an organization uses other ways to assess candidates.
Example: An employer’s attendance policy states that any absence during a three-month probationary period is cause for termination. A new employee’s mother has a serious fall. He takes two days off from work to help her at the hospital and to arrange supports for her return home. When he returns to work, he is dismissed because he violated the attendance policy.
iv) Context: historical disadvantage:
When assessing whether systemic discrimination may exist, employers should consider an individual or group’s already disadvantaged position in Canadian society. For example, the economic disadvantage apparent in First Nations and African Canadian communities may be related to the past discriminatory practices that limited economic opportunities for members of these communities.
Example: A large employer requires all employees to buy three uniforms and attend a two-week unpaid training session before starting paid employment. Out of every 20 people offered employment, more than one-quarter decline. Based on these numbers, the employer does some further checking to find out why people are turning down the job. Many of the people who did so were protected by Code grounds such as race and disability, and turned down the job because they could not afford the initial expenses. The employer realizes that their inability to pay may be linked to historical disadvantage. The employer changes the uniform and training requirements so that they do not pose a barrier to employment for people protected by the Code.
f) How to prevent and respond to racism and racial discrimination
Racism and racial discrimination can be very hard for an organization to address. A solid organizational anti-racism program recognizes that racism exists in society and within the specific organization. Such a program should contain four parts:
- a comprehensive anti-racism vision statement and policy
- proactive, ongoing monitoring
- implementation strategies
For more information about racism and how to develop anti-racism programs, refer to the Commission’s Policy and Guidelines on Racism and Racial Discrimination.
i) Anti-racism vision statement and policy:
A clear, concrete and thorough anti-racism vision statement and policy is an important part of a successful anti-racism program. All key stakeholders must be part of developing a vision statement and policy with support from the company’s leaders. A vision statement shaped by anti-racism principles and goals is a good framework for an anti-racism program. Refer to page 50 of the Commission’s Policy and Guidelines on Racism and Racial Discrimination for an example of a vision statement and how to create an anti-racism policy. The principles set out in the Commission’s updated policy Guidelines on Developing Human Rights Policies and Procedures will also continue to apply.
ii) Proactive, ongoing monitoring:
The Commission expects that an organization will take steps to assess whether there is a problem if concerns are expressed that policies or practices are having a discriminatory effect on racialized persons or groups. This kind of monitoring will often involve collecting data or producing and analyzing statistics. It may also include speaking to affected groups, reviewing systems and research. Steps must also be taken to change policies and practices that add to historical disadvantage. See also Section IV-1e) – “More about how to proactively identify and address systemic discrimination.”
iii) Implementation strategies:
Anti-racist organizational change calls for major changes to the structures and systems of organizations. The steps that are taken based on an anti-racism vision statement and policy are called “implementation strategies.” The company is expected to use all measures needed to address the problems that have been identified. Options include:
- organizational change initiatives (like changing reporting relationships, removing old practices or policies, using more formal processes with less discretion built in)
- special programs
- surveying to get feedback on issues of racism and racial discrimination (for example, exit interviews with departing staff)
- empowering racialized people, for example through formal mentoring programs
- planning for resistance to change and how to address it
- partnering with other organizations to come up with best practices
- having mandatory education and training for all staff
- giving out information on the anti-racism vision statement and policy
- getting help from an expert.
Many organizations tend to focus on training and forget about other implementation strategies. Training on its own is not enough to create an anti-racist work environment. Also, effective training needs to use anti-racism terms rather than generic terms like “diversity” or “cultural sensitivity.” Training that reduces racial discrimination to cultural misunderstandings does not lead to meaningful change. The aim is to understand what racism is and how to challenge it in individuals and within the organization as a whole.
Ongoing evaluation of a company’s anti-racism program is important to make sure that it continues to be effective. The vision statement and policy should be reviewed and revised from time to time. It is also prudent to review complaints that have been raised, how they were handled under the policy and ideas to improve the response to issues of racism and racial discrimination.
 Conference Board of Canada, Ontario’s Looming Labour Shortage Challenges: Projections of Labour Shortages in Ontario and Possible Strategies to Engage Unused and Underutilized Human Resources (September 25, 2007), online: www.workforcecoalition.ca at 20.
Ibid. at 20.
 Ontario Human Rights Commission, supra note 30.
 Ministry of Community and Social Services, “Changing Attitudes: Understanding Barriers to Accessibility” online: www.mcss.gov.on.ca/mcss/english/pillars/accessibilityOntario/accesson/understand_barriers.
Meiorin, supra note 6; see British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U.,  3 S.C.R. at 3 (gender) and Grismer, supra note 7.