Part I – Freedom from discrimination

Every person has the right to equal treatment in employment without discrimination based on Code grounds. In Ontario, about three-quarters of all human rights claims come from the workplace.

Employment is used in a very general way in the Code. Employees, independent contractors[7] and volunteers are covered.

Human rights applications can be filed against employers – and also against contractors, unions or boards of directors. Employers and unions have a joint duty to make sure that workplaces are free of discrimination and harassment.

The right to “equal treatment with respect to employment” covers applying for a job, being recruited, training, transfers, promotions, terms of apprenticeship, dismissal and layoffs. It also covers rate of pay, overtime, hours of work, holidays, benefits, shift work, discipline and performance evaluations.

People with disabilities have the right to be provided with equipment, services or devices that will allow them to do their job.[8]

Employment and age

In employment, you must be at least 18 years old to file a claim stating that you were discriminated against because of your age. There is no age maximum on the right to freedom from discrimination in the workplace because of age. This means that older persons, who feel that they have discriminated against based on their age, may file a human rights claim.[9]

Employment and record of offences

When you apply for a job, you cannot be asked if you have any kind of criminal record. However, employers can ask whether you have been convicted of a federal offence for which you have not received a pardon. You may be asked during an interview whether you are bondable, if that is a requirement for the job.

Employment and unions

If you are a member of a union, you may have the right to file a grievance under your collective agreement. Check with your shop steward or representative.

Employers cannot come to an agreement with a union or an employee that some or all of the Code does not apply to them. Also, if a union does not support an employer’s efforts to meet its obligations under the Code, a human rights application may be filed against the union.

Employment and creed[10]

You have the right to employment that respects your sincerely held beliefs and practices. You may have religious or creed-based needs such as prayer breaks, religious or creed-based days off, and dress requirements. If you ask your employer to meet these needs, they should be met unless your employer can show that it would prevent you from doing the essential duties of your job, or would cause undue hardship based on costs or health or safety risks.

In Ontario, employers can meet their duty to accommodate time off for religious holy days by searching for solutions that allow time off without adverse employment consequences, including a loss of pay. However, forcing an employee to use vacation time instead of exploring other options would likely be found discriminatory.[11] Providing several alternatives and choices is always preferable.

Height and weight requirements

Minimum standards for height and weight sometimes unintentionally screen out certain job applicants, such as women and racialized persons. Such a standard is only allowed if it:

1. was adopted for a purpose or goal that is rationally connected to the function being performed
2. was adopted in good faith, in the belief that it is needed to fulfill the purpose or goal
3. is reasonably necessary to accomplish its purpose or goal, in the sense that the person cannot be accommodated without undue hardship.

The ultimate issue is whether the person responsible for accommodation has shown that accommodation has been provided up to the point of undue hardship.

Employment, language and accent[12]

If you believe you have been discriminated against because of your language or accent, you can make a human rights claim based on a number of grounds, such as ancestry, ethnic origin, place of origin and race.

An employer can require that you speak English fluently if it is a genuine job requirement. An employer cannot use language or accent as a way to screen out racialized people or people of particular ethnic origins where language fluency is not essential to the job.

For example, an employer refuses to hire a person from Spain as a school bus driver because he does not speak fluent English. However, being fluent in English is not essential to the job. This could be discrimination because of place of origin.

Employment, medical examinations and drug or alcohol testing[13]

Drug and alcohol dependencies, as well as perceived dependencies, may be considered a form of disability under the Code. While not all people with drug and alcohol dependencies see themselves as having a disability, they are protected under the Code against discrimination in the workplace based on the ground of disability.

Testing for alcohol and drug use is a form of medical examination. Employment-related medical examinations or questions, as part of the job screening process, are prohibited. Medical examinations to determine the ability to do essential job duties should only be used after a conditional offer of employment has been made, preferably in writing.

If an employer cannot show that it has an effect on job safety and performance, drug and alcohol testing has been found to be a violation of employee rights.

Employment agencies

Employment agencies cannot discriminate. They also cannot discriminate at the request of a client. For example, an employer asks an agency to send them a young, attractive woman for a receptionist position. This would be discrimination based on age and sex.

Section 23 of the Code talks about other issues in employment, such as job applications, medical examinations or inquiries, and interviews.

Harassment in employment

“Harassment” means comments or actions that are unwelcome to you or should be known to be unwelcome. You have the right to be free from humiliating or annoying behaviour that is based on one or more Code grounds.

Harassment requires a “course of conduct,” which means that a pattern of behaviour or more than one incident is usually needed. It doesn’t matter what type of business or employment it is – harassing behaviour based on Code grounds in any employment setting is prohibited under the Code.[14] Harassment in the workplace is also prohibited under the Occupational Health and Safety Act.[15]

Poisoned environment

You might feel that your workplace is hostile or unwelcoming to you because of insulting or degrading comments or actions that have been made about you or others based on a Code ground. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a “poisoned environment.” A poisoned environment cannot, however, be based only on your personal views. You must have facts to show that an objective person would see the comments or conduct resulting in unequal or unfair terms and conditions.