12. Preventing and responding to discrimination

The ultimate responsibility for maintaining an environment free from discrimination and harassment rests with employers, housing providers, service providers and other responsible parties covered by the Code. It is not acceptable to choose to ignore discrimination or harassment based on creed, whether or not a human rights claim has been made.

Organizations and institutions operating in Ontario have a legal duty to take steps to prevent and respond to breaches of the Code. Employers, housing providers, service providers and other responsible parties must make sure they maintain accessible, inclusive, discrimination and harassment-free environments that respect human rights. All of society benefits when people of diverse creed backgrounds are encouraged and empowered to take part at all levels.

Example: A school board develops detailed guidelines supported by policy, procedure, communications and designated staff to manage and inclusively design for religious accommodations in schools. At the start of the school year, students, families and employees are invited to inform the school of any beliefs or practices requiring accommodation through the proactive use and distribution of Religious Accommodations Invitation Forms, and through inquiries during parent-teacher interviews.^[570]

Employers, housing providers, service providers and other responsible parties violate the Code where they directly or indirectly, intentionally or unintentionally infringe the Code, or where they do not directly infringe the Code but authorize, condone or adopt behaviour that is contrary to the Code.

Under section 46.3 of the Code, a corporation, trade union or occupational association, unincorporated association or employers’ organization will be held responsible for discrimination, including acts or omissions, committed by employees or agents in their employment. This is known as vicarious liability. Simply put, it is the OHRC’s position that an organization is responsible for discrimination that occurs through the acts of its employees or agents done in the normal course, whether or not it had any knowledge of, participation in, or control over these actions.

Example: Staff in a co-op housing complex refuse to investigate a tenant’s allegation that another tenant is discriminating against her based on her creed and ethnic origin. The board providing the housing would be responsible and potentially liable for condoning discrimination and not responding to this allegation.

Vicarious liability does not apply to breaches of the sections of the Code dealing with harassment. However, because the existence of a poisoned environment is a form of discrimination, when harassment amounts to or results in a poisoned environment, vicarious liability is restored. Further, in these cases the “organic theory of corporate liability” may apply. That is, an organization may be liable for acts of harassment carried out by its employees if it can be proven that management was aware of the harassment, or the harasser is shown to be part of the management or "directing mind" of the organization.^[571]

The decisions, acts, or omissions of the employee will engage the liability of the organization in harassment cases where:

• The employee who is part of the “directing mind” engages in harassment or inappropriate behaviour that is contrary to the Code, or
• The employee who is part of the “directing mind” does not respond adequately to harassment or inappropriate behaviour he or she is aware of, or ought reasonably to be aware of.

Generally speaking, managers and central decision-makers are part of an organization’s “directing mind.” In employment, employees with only supervisory authority may also be part of the “directing mind” if they function, or are seen to function, as representatives of the organization. Even non-supervisors may be considered to be part of the “directing mind” if they have de facto supervisory authority or have significant responsibility for guiding others. An example might be a member of the bargaining unit who is a lead hand.

There is also a clear human rights duty to not condone or further a discriminatory act that has already happened. To do so would extend or continue the life of the initial discriminatory act. This duty extends to people who, while not the main actors, are drawn into a discriminatory situation through contractual relations or in other ways.^[572]

Depending on the circumstances, employers, housing providers, service providers and other responsible parties may be held liable for failing to respond to the actions of third parties (such as service users or customers, contractors, etc.) who engage in discriminatory or harassing behaviour.^[573]

Multiple organizations may be held jointly liable where they all contribute to discrimination. For example, a union may be held jointly liable with an employer where it has contributed towards discriminatory workplace policies or actions – for example, by negotiating discriminatory terms in a collective agreement, or blocking an appropriate accommodation, or failing to address a harassing or poisoned workplace environment.

Human rights decision-makers often find organizations liable, and assess damages, based on the organization’s failure to respond appropriately to address discrimination and harassment.

Example: An employee experienced a humiliating RCMP investigation after a co-worker reported him as someone she suspected as having been involved in the 9/11attacks. A tribunal found that the co-worker had acted based on stereotypes about the applicant's Muslim religion. The tribunal also found that while the employer was not responsible for the report to the RCMP, which was made outside the workplace, it was responsible for discriminatory racial profiling in the workplace as it allowed the suspicions about the employee to continue in the workplace and failed to take any actions to address the impact on him. Instead, the employer left the man to fend for himself in a poisoned work environment.^[574]

An organization may respond to complaints about individual instances of discrimination or harassment, but it may still be found to have not responded appropriately if the underlying problem is not resolved. There may be a poisoned environment, or an organizational culture that condones discrimination, despite dealing with the behaviour of the individual perpetrators. In these cases, organizations must take further steps, such as training and education, to better address the problem.

Some things to consider when deciding whether an organization has met its duty to respond to a human rights claim include:

• Procedures in place at the time to deal with discrimination and harassment
• How promptly the organization responded to the complaint
• How seriously the complaint was treated
• Resources made available to deal with the complaint
• Whether the organization provided a healthy environment for the person who complained
• Whether the action addressed the issue appropriately
• How well the action taken was communicated to the person who complained.^[575]

Organizations should develop strategies to prevent discrimination based on all Code grounds, but should give specific consideration to human rights based on creed.

A complete strategy to prevent and address human rights issues should include:

• A barrier prevention, review and removal plan^[576]
• Anti-harassment and anti-discrimination policies
• An education and training program^[577]
• An internal complaints procedure^[578]
• An accommodation policy and procedure.^[579]

In its publication entitled A policy primer: guide to developing human rights policies and procedures,^[580] the OHRC provides more information to help organizations meet their human rights obligations and make sure their environments are free from discrimination and harassment.

12.1 Cultural competency

As part of the duty to keep environments free from discrimination and harassment, employers, service providers (e.g. health care professionals, police services, legal services) and housing providers should look at whether their staff have the necessary cultural competency (including religious) skills to take into account the needs of people from diverse creed backgrounds, with a range of unique identities.

Cultural competence has been defined as “a set of congruent behaviors, attitudes and policies that come together in a system or agency or among professionals that enables that system, agency or professionals to work effectively in cross-cultural situations.”^[581]

It is especially important for organizations that provide services to the public to have staff members with cultural (including religious) competency skills. The ability to interact comfortably with people from diverse cultural and religious backgrounds and identities is key to recognizing and meeting the human rights-related needs of different groups and communities, including people belonging to diverse creed communities.

Example: A hospital provides cultural and religious competency training for its staff members and makes sure they have a diverse roster of counsellors and chaplains on hand to support end-of-life care for persons of diverse creed faiths.

When interacting with people, organizations should use an individualized approach that recognizes the unique identity of each person, without relying on preconceived notions, assumptions or stereotypes.

12.2 Recruitment and hiring procedures

Trying to get information about a person’s creed directly or indirectly during the recruitment or hiring process is not acceptable, unless this relates to a bona fide requirement or otherwise meets the requirements for an exemption under the Code (as discussed below).

Example: An employer that asked a job applicant questions about religion during his interview to determine whether he had the same “values” and would “fit” into the company culture was found have contravened section 23(2) of the Code, which prohibits oral inquiries of a job applicant that directly or indirectly classify or indicate qualifications based on a prohibited ground, including the applicant’s religious or creed beliefs.^[582]

In general, invitations to apply for employment, application forms and selection processes cannot contain:

• Questions about availability for work that are asked in a way that reveals the applicant's creed
• Questions designed to reveal that religious requirements may conflict with the prospective employer’s work schedules or workplace routines
• Inquiries as to religious affiliation, places of worship that are attended, or customs observed.

Example: A person who applied for a client care centre business clerk position alleged that she was screened out in a telephone interview when the interviewer learned that she could not work on Saturdays for religious reasons. She alleged that the interview was abruptly ended after she revealed that she was a Seventh Day Adventist and Saturday was her Sabbath. The HTRO concluded that the woman’s inability to work on Saturdays was a factor in her being denied a follow-up in-person interview as the employer failed to provide enough evidence of a non-discriminatory reason for screening her out at the telephone stage.^[583]

Only once a person has been offered employment do they have an obligation to notify the employer of any religious requirements that are relevant to their duties, and to request accommodation, as the need arises.

Example: A job applicant passed the initial screening phase of a job competition. While he was being trained, he requested time off for Friday prayer and offered to write a test that was scheduled for Friday afternoon later that evening. The employer refused him the time off and asked whether he would need time off for Friday prayers if the company hired him. After he confirmed that he would, the employer advised that it “couldn’t go forward with his application.” In finding discrimination, the HRTO confirmed that the employer had a procedural duty to take adequate steps to assess and explore accommodation options, which it had failed to do. The HRTO also rejected the employer’s argument that the job candidate was required to disclose his need for accommodation earlier in the recruitment process and, by not doing so, had been deceitful.^[584]

In exceptional circumstances, a job applicant may need to tell the employer their creed-based work limitations during the hiring process, where their creed observances will clearly and unambiguously prevent them from fulfilling the essential requirements of the job (e.g. fulfilling the terms of a part-time job that requires, as an essential advertised requirement, the ability to work exclusively on a day that conflicts with the applicant's Sabbath).

Nothing prevents an employer from asking questions about creed during the recruitment or hiring phase, if the questions are otherwise permitted by the Code (for instance, due to an exemption). Exemptions may apply for organizations that are pursuing a special program hiring under section 14 of the Code, or that qualify as a special interest organization or special employer under sections 18 and 24.^[585] People should be informed where there are bona fide (legitimate) creed-based qualifications, restrictions or preferences for an employment position, provided such restrictions or preferences are in accordance with the terms of a Code-based statutory defence.

Example: A job advertisement for a Sunday school teacher for children at a Mennonite church clearly explains to potential applicants that they are looking specifically for persons of the Mennonite faith to teach the program, in accordance with section 24 of the Ontario Human Rights Code.

For organizations that may legitimately impose creed-based qualifications or restrictions, application and interview questions should not extend beyond what is reasonably necessary to assess the job applicant’s ability to meet bona fide creed-based job qualifications or requirements.

Example: A denominational school requests information to confirm the religious affiliation of persons applying for teaching positions, since the job involves communicating religious values to students. While this is permissible under the Code, this does not grant open license to inquire into every detail about a job applicant’s personal religious and moral life during the recruitment and hiring process. Questions relating to creed should focus only on those aspects that are relevant to assessing their ability to fulfill bona fide creed-based qualifications.

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