6. Forms of discrimination

6.1 Direct, indirect, subtle and adverse effect discrimination

Discrimination may take many different forms. For example, it may take place in a direct way. It can happen when individuals or organizations specifically exclude people with disabilities in housing, employment or services, withhold benefits that are available to others, or impose extra burdens that are not imposed on others, without a legitimate or bona fide reason. This discrimination is often based on negative attitudes, stereotypes and bias about people with disabilities.

Discrimination may also happen indirectly. It may be carried out through another person or organization.

Example: A private school “indirectly” discriminates by instructing an admissions scout it has hired not to recruit students with disabilities who have costly accommodation requirements.^[87]

The organization or person that sets out discriminatory conditions, and the organization or person that carries out this discrimination, can both be named in a human rights claim and held responsible.

Discrimination is often subtle. Discriminatory remarks are not often made directly, and people do not usually voice stereotypical views as a reason for their behaviour. Subtle forms of discrimination can usually only be detected after looking at all of the circumstances to determine if a pattern of behaviour exists. Individual acts themselves may be ambiguous or explained away, but when viewed as part of a larger picture, may lead to an inference that discrimination based on a Code ground was a factor in the treatment a person received. An inexplicable departure from usual practices may establish a claim of discrimination.^[88] Criteria that are applied to some people but not others may be evidence of discrimination, if it can be shown that people and groups identified by the Code are being singled out for different treatment.

Sometimes seemingly neutral rules, standards, policies, practices or requirements have an “adverse effect” on people with disabilities.

Example: An employer’s policy of not hiring people who have “gaps” in their résumés because they have been out of the workforce for a period of time could adversely affect people who have had to take time off work for reasons related to a disability.

Many laws, requirements or standards are put in place without considering the unique needs or circumstances of people with disabilities. Organizations have a responsibility to understand where these may have a discriminatory effect, and to remove this effect where it occurs.

6.2 Harassment

The Code defines harassment as “engaging in a course^[89] of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”^[90] The reference to comment or conduct “that is known or ought reasonably to be known to be unwelcome” establishes both a subjective and an objective test for harassment.

The subjective part is the harasser’s own knowledge of how his or her behaviour is being received. The objective component considers, from the point of view of a “reasonable” person, how such behaviour would generally be received. Determining the point of view of a “reasonable” person must take into account the perspective of the person who is harassed.^[91] In other words, the HRTO can conclude based on the evidence before it that an individual knew, or should have known, that his or her actions were unwelcome.^[92]

Harassment is explicitly prohibited under the Code in employment and housing.^[93] In employment, every employee has a right to be free from harassment in the workplace by the employer or agent of the employer or by another employee because of disability and other Code grounds.^[94]

Example: In one case, the Ontario Court of Appeal found that when a woman suddenly lost her hearing, her employer subjected her to a “campaign of abuse” that included “publically belittling, harassing and isolating [her] in ways relating to her disability.” The Court also found that in addition to being denied any accommodation of her disability, the woman’s employer also “took specific steps to increase the difficulties she faced as a result of her not being able to hear.” The Court awarded damages for breach of the Code.^[95]

The right to be free from harassment in the workplace also includes the “extended workplace,” that is, events that occur outside of the physical workplace or regular work hours, but that have implications for the workplace, such as business trips, company parties or other company related functions. The issue is whether these events have work-related consequences for the person being harassed.^[96]

In housing, people with disabilities have the right to be free from harassment in accommodation by the landlord or an agent of the landlord or by an occupant of the same building, because of disability and other Code grounds.

Example: An Ontario human rights tribunal found that a landlord engaged in a vexatious course of conduct to control the life of a woman with cerebral palsy, as both a tenant and as a person. Among other things, the landlord entered the woman’s apartment when she was not there, turned off the hallway light when she was partly down the stairs, and banged repeatedly on her ceiling. The landlord was also found to have made verbal slurs regarding the woman’s disability.^[97]

People also have the right to be free from harassment in services, in making contracts, and in membership in unions, trade or vocational associations. Sections 1, 3 and 6 of the Code guarantee the right to equal treatment in these social areas, without discrimination based on disability, among other Code grounds. Harassment based on disability, as a form of discrimination, is therefore prohibited in these areas.^[98]

There is no requirement that a person must object to the harassment at the time for a violation of the Code to exist, or for a person to claim their rights under the Code.^[99] A person with a disability who is the target of harassment may be in a vulnerable situation, and afraid of the consequences of speaking out. Housing providers, employers and service providers have an obligation to maintain an environment that is free of discrimination and harassment, whether or not anyone objects.^[100]

It should be understood that some types of comments or behaviour are unwelcome based on the response of the person subjected to the behaviour, even when the person does not verbally object.^[101] An example could be a person walking away in disgust after a co-worker has made a derogatory comment about her disability.

Some conduct or comments relating to disability may not, on their face, be offensive. However, they may still be “unwelcome” from the perspective of a particular person. If similar behaviour is repeated despite indications from the person that it is unwelcome, there may be a violation of the Code.

People may experience “a course of unwelcome conduct” based on a disability, a past or perceived disability, a person’s accommodation needs, the treatment they are receiving (e.g. medication or therapy), or the side-effects of treatment. Harassment could include:

• slurs, name-calling or pejorative nicknames based on disability
• graffiti, images or cartoons depicting people with disabilities in a negative light
• comments ridiculing people because of disability-related characteristics
• intrusive questioning or remarks about someone’s disability, medication, treatment or accommodation needs
• singling out a person for teasing or jokes related to disability
• inappropriately disclosing someone’s disability to people who do not need to know
• repeatedly excluding people from the social environment, or “shunning”
• circulating offensive material about people with disabilities at an organization by email, text, the Internet, etc.

Harassment based on Code grounds is occurring increasingly through cyber-technology, including cell phone text messaging, social networking sites, blogs and email.^[102] While there are sometimes complex jurisdictional issues around the legal regulation of cyber-harassment, organizations may be liable for a poisoned environment caused when online communications containing comment or conduct that would amount to harassment are accessed through technology operated by the organization, or by private electronic devices used on the organization’s premises.^[103]

Harassment may take different forms depending on whether the affected person identifies with more than one Code ground.

Example: A doctor makes repeated comments to a female patient with epilepsy about the fact that she’s not married. He expresses his view that she would be “much better off” if she had a man at home to take care of her, and to support her so that she wouldn’t have to work. The doctor’s behaviour may amount to harassment based on both disability and sex.

6.3 Poisoned environment

A poisoned environment is a form of discrimination. In employment, human rights tribunals have held that the atmosphere of a workplace is a condition of employment as much as hours of work or rate of pay. A “term or condition of employment” includes the emotional and psychological circumstances of the workplace.^[104] A poisoned environment can also occur in housing and services.

A poisoned environment may be created when unwelcome conduct or comments are pervasive within the organization, which may result in a hostile or oppressive atmosphere for one or more people from a Code-protected group. This can happen when a person or group is exposed to ongoing harassment. However, a poisoned environment is based on the nature of the comments or conduct and the impact of these on an individual rather than just on the number of times the behaviour occurs. Sometimes a single remark or action can be so severe or substantial that it results in a poisoned environment.^[105]

Example: A man with chronic back pain requested time off work to recover from an especially bad flare-up. His manager was clearly unhappy with the request and refused to help the man with the paperwork required for a short-term disability leave. The manager expressed his view at a staff meeting that the man was “faking” his condition to get time off of work. This behaviour may amount to a poisoned work environment based on disability.

A consequence of creating a poisoned environment is that certain people are subjected to terms and conditions of employment, tenancy or services that are quite different from those experienced by people who are not subjected to those comments or conduct. This gives rise to a denial of equality under the Code.

The comments or actions of any person, regardless of his or her position of authority or status, may create a poisoned environment. Therefore, a co-worker, supervisor, co-tenant, member of the Board of Directors, service provider, fellow student, etc. can all engage in conduct that poisons the environment of a person with a disability.

Behaviour need not be directed at any one person to create a poisoned environment. A person can experience a poisoned environment even if he or she is not a member of the group that is the target. Further, not addressing discrimination and harassment may in itself cause a poisoned environment.^[106]

Organizations have a duty to maintain a non-discriminatory environment in services, housing and employment, to be aware of a poisoned environment that exists, and to take steps to respond and eliminate it.

Management who know, or ought to know, of a poisoned atmosphere but allow it to continue are discriminating against the affected tenants, employees or service users even if they are not themselves actively engaged in producing that atmosphere.^[107]

Example: The HRTO found that several members of a non-profit housing cooperative were subjected to “egregious and persistent” harassment and a poisoned environment when an unknown person posted “18 vulgar and incredibly vicious messages” within the co-op that related to disability and other grounds protected by the Code. The HRTO found that while the co-op was not responsible for the harassment, it was responsible for failing to address the harassment adequately. In particular, the co-op “did not take the issue seriously, did not act with urgency and completely failed to communicate with the [co-op members].”^[108]

6.4 Systemic discrimination

Discrimination based on disability exists not just in individual behaviour, but can also be systemic or institutionalized. As one author notes, “…the philosophical and ideological foundations upon which discrimination against disabled people is justified are well entrenched within the core institutions of society.”^[109]

Systemic or institutional discrimination is one of the more complex ways that discrimination happens.^[110] Organizations and institutions have a positive obligation to make sure that they are not engaging in systemic or institutional discrimination.

Systemic or institutional discrimination consists of attitudes, patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization or sector, and that create or perpetuate a position of relative disadvantage for people with disabilities. The attitudes, behaviour, policies or practices appear neutral on the surface but nevertheless have an “adverse effect” or exclusionary impact on people with disabilities.

Systemic discrimination can also overlap with other types of discrimination. For example, a policy that has an adverse discriminatory effect can be compounded by the discriminatory attitudes of the person who is administering it.

Example: A municipality’s business improvement association rolls out a program whereby people (“ambassadors”) are hired to actively dissuade people from sleeping on public property and panhandling in public parks, alleys and sidewalks. In the data collected by the ambassadors, the words “crazy,” “deaf” and “native” are used to describe some of the individuals that were asked to leave these areas. A court ruled that the program disproportionately affected people with physical and mental disabilities and people with Aboriginal ancestry.^[111]

Systemic discrimination is often embedded in an institution or sector, and may be invisible to the people who do not experience it, and even to the people who may be affected by it. It may be “reinforced by the very exclusion of the disadvantaged group” because the exclusion fosters the false belief that it is the result of “natural” forces (for example, that people with disabilities are just not as capable as others of being employed).^[112] To combat systemic discrimination, it is essential for an organization to create a climate where negative practices and attitudes can be challenged and discouraged, and where the diverse needs of people are considered in all aspects of its operations.

Example: In designing its rental housing buildings, a property management company hires a design expert to ensure that all physical structures are built according to the principles of inclusive design. This step ensures that the rental units are accessible to people with physical disabilities as well as to families with small children and older people.

It may not be necessary for multiple people to make complaints about an institution’s policies or practices for their impact to be understood as causing systemic discrimination. Often, it can be inferred from the evidence in one person’s case that many people from a Code-protected group will be negatively affected.

For detailed information on how to identify systemic discrimination, see section 4.1 of the OHRC’s Policy and guidelines on racism and racial discrimination.^[113]

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