10. Forms of 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 in rental 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 mental health or addiction disabilities.

Discrimination may also happen indirectly. It may be carried out through another person or organization. For example, an agent of a landlord may “indirectly” discriminate against people who she perceives to have psychosocial disabilities, because the landlord has told her to screen out anyone who has a disability. 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. It may be unlikely that discriminatory remarks will be made directly, or that someone will freely voice their stereotypical views as a rationale 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.[96] 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.[97]

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

Example: A housing co-operative sought to evict a member because she did not perform volunteer duties (which were expected of all members), despite her doctor’s note saying she could not do so for medical reasons. The co-op also sought further details of her medical condition which she refused to provide, and this also formed the basis for the eviction. The co-op’s rule regarding volunteer service had an adverse effect on the complainant because of her mental disability. The Court found that the co-op had a duty to accommodate to the point of undue hardship before evicting. If the complainant could not do any of the volunteer activities for “valid medical reasons,” the Court said that exempting her from this requirement would be unlikely to create undue hardship.[98]  

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

10.1 Profiling based on mental health 

Mental health profiling may be defined as any action undertaken for reasons of safety, security or public protection that relies on stereotypes about a person’s mental health or addiction rather than on reasonable grounds, to single out a person for greater scrutiny or different treatment.

Example: Security staff at a hospital are routinely called to be present if a person’s file reveals a mental health diagnosis, regardless of the person’s behaviour.[99]

Mental health profiling is different from criminal profiling. Criminal profiling relies on actual behaviour or on information about suspected criminal activity by someone who meets the description of a specific individual.

“Profiling” as a human rights concept arises from the experiences of people from racialized communities and Aboriginal people who have been subjected to racial profiling. There is a wealth of jurisprudence establishing the phenomenon of racial profiling.[100] Although profiling based on mental health may look different, it can be just as damaging and alienating.

Profiling is based on preconceived ideas about a person’s character. People with perceived or known mental health or addiction issues are commonly stereotyped as a risk to public security and safety even when there may be little objective evidence to support this perception.[101] Profiling based on mental health could happen in many different situations (for example, when receiving services, such as policing, education, in shops and restaurants,[102] and when accessing government, community and other services).

In the case of racial profiling, courts have accepted the widespread existence of racism. For example, in the case of anti-Black racism, they have accepted that pervasive negative societal views about Black men may wrongly connect Black men and acts of violence. This may lead to behaviour being unconsciously influenced by stereotypes, and overreactions to conduct where Black people are perceived as threatening, even where there is no real risk.[103]

It is the OHRC’s view that longstanding and pervasive stereotypes can similarly influence actions against people with known or perceived mental health issues or addictions. Organizations and individuals must assess risk based on a person’s individual circumstances, using objective evidence or criteria, and not on blanket assumptions or speculation based on a person’s diagnosis or perceived mental health issue.

There may be situations where people with mental health issues or addictions engage in behaviour that is associated with their disability, which is not a risk to public safety, but is seen to be “different,” unusual, or defies conventional norms. Because of this, they may be perceived to be a risk to public security and responded to in a disproportionate way.[104] It is the OHRC’s position that this can be a form of profiling.

Even if there is some evidence of risk or wrongdoing, organizations are expected to respond in a way that is proportionate to the situation.[105] Where risk is presumed based on stereotypes, this can lead to unnecessary escalation of responses to people with mental health or addiction issues.

There will rarely be direct evidence of profiling and, therefore, it must be proven by inference drawn from circumstantial evidence.[106] The following factors are drawn from the case law on racial profiling. These factors may be relevant when considering whether profiling based on mental health was a reason for the alleged treatment:

• whether the respondent is aware of the person’s mental health issue or addiction, or there is a perception that the person has a mental health issue or addiction
• statements were made that show the existence of stereotyping or prejudice against someone with a mental health issue or addiction (e.g. negative comments)
• no explanation, or a contradictory or changing explanation, is given for why someone was subjected to greater scrutiny or different treatment, or an explanation is offered that does not accord with common sense[107]
• there were deviations from the normal practice that are hard to explain[108]
• an unprofessional manner was used or the person was subjected to discourteous treatment (for example, through harsh questioning)[109]
• the person fit a certain profile[110]
• unfounded suspicion or action in the face of a possibly innocent explanation[111]
• misinterpreting innocent or ambiguous conduct as incriminatory (e.g. failure to make eye contact)
• overreaction to perceived challenging behaviour[112]
• events would have unfolded quite differently if the complainant were not known or perceived to have a mental health issue or addiction.[113]

People who believe they are being profiled can be expected to find the experience upsetting and might well react in an angry and verbally aggressive way. A person’s negative reaction in these circumstances requires reasonable tolerance and tact and cannot form the basis for further differential treatment.

There are situations where observed behaviour arising from a person’s mental health or addiction disability may justify a real or legal basis for scrutiny. For example, under the Mental Health Act, police can apprehend people and take them to see a doctor if police have “reasonable and probable grounds” to believe that the person is acting in a disorderly way and if there is reasonable cause to believe that the person has shown they are a risk to others (or themselves). Police must also believe that the person has a mental disorder that will result in serious bodily harm to others, or that the disorder will cause serious bodily harm or physical impairment to themselves.[114]

Also, under the Criminal Code, certain behaviour associated with substance use may form “reasonable suspicion” and may justify further scrutiny by police (for example, where there is evidence that someone is under the influence of alcohol or drugs while driving).

The HRTO has found that it is not discriminatory to respond to the actual behaviour of people with mental health disabilities that causes risk.[115]

Intersections of different Code grounds can contribute to people being perceived as a risk to public safety. For example, people with mental health issues who are Aboriginal or from racialized communities may be more likely to be profiled as a security risk than other people. Multiple stereotypes linked to a person’s age, sex, disability, race, Aboriginal identity, or socio-economic status, etc., may result in people being more likely to be treated as a threat to public safety. 

Example: A Tribunal ruled that the owner of a shopping mall and the security company it employed engaged in a pattern of discriminatory treatment of Aboriginal people and people with disabilities. The Tribunal examined the "orders" that were used by the mall to direct the security officers on which people to watch for, and found that a number of elements discriminated against and stereotyped economically disadvantaged people. For example, the Tribunal noted that the direction to target people who have “a bad odour,” are talking to themselves, etc. could have an adverse effect based on mental disability or addiction.[116]

If organizations scrutinize people with known or perceived psychosocial disabilities based on stereotypes and assumptions, rather than actual behaviour, this may be a violation of the Code.[117]

10.2 Harassment

Harassment is prohibited under the Code in employment and housing.[118] 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. This right applies to the workplace, but also 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.[119]

In housing, people with psychosocial 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: A tenant, who identified as having learning disabilities and depression, decided to move from her apartment to a subsidized housing unit. The landlord was aware that she had a mental health issue. The landlord became angry that she was moving, and subjected her to slurs such as “mental,” “crazy” and “sick” in the weeks before her move. The HRTO found that this was harassment because of her mental disability and that the applicant “suffered considerable humiliation and loss of dignity” as a result.[120]

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.[121]

The Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”[122] 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.[123] 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.[124]

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 explicitly object.[125] An example could be a person walking away in disgust after a co-worker has made derogatory comments about people with mental health or addiction disabilities.[126]

Some conduct or comments relating to a Code-protected ground (such as 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 psychosocial disability, a past or perceived psychosocial 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 psychosocial disability
• graffiti, images or cartoons depicting people with psychosocial disabilities in a negative light
• comments ridiculing people because of mental health or addiction-related characteristics
• intrusive questioning or remarks about someone’s disability, medication or accommodation needs
• singling out a person for teasing or jokes related to psychosocial disability
• inappropriately disclosing someone’s psychosocial disability to people who do not need to know
• repeatedly excluding people from the social environment, or “shunning”
• circulating offensive material about people with psychosocial 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.[127] 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.[128]

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

Example: The HRTO found that an employer discriminated against an employee with bi-polar disorder when it made no efforts to respond to or investigate his concerns about harassment. The employee reported a number of incidents of inappropriate comment and conduct by his co-workers related to his disability and perceived sexual orientation. Nothing was done about the harassment and bullying. The man alleged that the harassment included homophobic taunts, being teased about taking medication and often being referred to as a “freak.” As well, co-workers tried to interfere with his prospective customers by telling them that he was “crazy” and “busy with his new boyfriend.”[129]

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.[130] A person with a mental health issue or an addiction 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.[131]

10.3 Poisoned environment

A poisoned environment is a form of discrimination. In employment, 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.[132] 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. Although the definition of harassment refers to a “repeated” course of conduct or comment, sometimes a single remark or action can be so severe or substantial that it results in a poisoned environment.[133]

Example: A woman, who had anxiety, was accommodated during surgery by having a person help her to relax before the procedure. After surgery, her surgeon told her, “Had I known you were crazy, I never would have operated on you.” This type of comment could be seen as poisoning the service environment for this person.

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.

Example: In one case that dealt with a man who was battling an addiction to crack cocaine, the HRTO said: “I find that the personal respondent's use of the term ‘crack head’ both to and about the applicant was demeaning of the applicant because of his disability. The disclosure of his addiction in emails in the context of allegations of wrongdoing offended the applicant's dignity and stigmatized him because of his disability. I accept that this discrimination had a detrimental impact on the applicant's confidence within the work environment and on his ability to work with his business contacts, and that they did not respond to him as they had done previously.[134]

…

I accept that as a result of the discrimination, the applicant suffered humiliation, embarrassment, experienced a loss of self-respect, dignity, self-esteem and confidence and that he felt that he had been stigmatized in the context of his working environment. I find also that it resulted in him losing trust in the respondents and consequently to his resignation from this employment and that it resulted in a poisoned work environment.”[135]

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, a supervisor, a co-tenant, a member of the Board of Directors, a service provider, a fellow student, etc. can all engage in conduct that poisons the environment of a person with a psychosocial 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.[136]

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.

Example: A bartender at a club experienced depression after the death of her father, and took a medical leave. The HRTO found that, among other things, her employer publicly posted confidential details about her medical condition for club members and staff to see, and directed staff to give a copy of the posting to any member who requested one. The HRTO said that this was discriminatory because it stigmatized the employee and poisoned her work environment.[137]

Management personnel who are aware, or ought to be aware, of a poisoned environment but allow it to continue discriminate against the affected tenants, employees or service users even if they themselves are not involved in producing that atmosphere.[138]

10.4 Systemic discrimination

Discrimination based on psychosocial disabilities exists not just in individual behaviour, but can also be systemic or institutionalized. Systemic or institutional discrimination is one of the more complex ways that discrimination happens.[139] 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 patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization or sector, and which create or perpetuate a position of relative disadvantage for people with psychosocial disabilities. The behaviour, etc. appears neutral on the surface but nevertheless has an “adverse effect” or exclusionary impact on people with psychosocial disabilities.

Example: Barriers to employment for people with psychiatric disabilities may be created when non-criminal contact with police is recorded and disclosed as part of a police record check. This can be a form of systemic discrimination.[140]

Systemic discrimination can also overlap with other types of discrimination that are not neutral. 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 developed a bylaw restricting the location of group homes for people with disabilities as a response to the concerns of neighbours who don’t want tenants with mental health issues or addictions living in their neighbourhood. The municipality also continues to enforce its longstanding bylaws that make rooming houses illegal, and restrict many renters from sharing a house. These rules and bylaws, whether intentionally or not, will have an adverse impact on people with psychosocial disabilities, who are more likely to use these types of housing. The actions of the municipality may be evidence of systemic discrimination.[141]

Systemic discrimination is often embedded in an institution or sector, and may be invisible to the people who do not experience 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 psychosocial disabilities are just not as capable of others of being employed).[142] To combat systemic discrimination, it is essential for organizations to create a climate where negative practices and attitudes can be challenged and discouraged. 

In some situations, the existence of historical disadvantage is a factor that gives rise to or contributes to systemic discrimination. It is therefore necessary to consider an individual or group’s already disadvantaged position in Canadian society as part of any analysis of whether systemic or institutional discrimination is taking place. In the case of people with psychosocial disabilities, the broader context of societal stigma, privacy concerns of disclosing one’s disability, pervasive negative stereotyping, and experiences of historical, economic and social marginalization may all be relevant to someone’s personal experience of discrimination within an institution or sector.

Example: To apply for articling positions through a law society, a law student filled out an application that contained the question: "Have you ever been treated for schizophrenia, paranoia, or a mood disorder described as a major affective illness, bipolar mood disorder, or manic depressive illness?" He answered “yes,” because previously he had experienced a couple of episodes of depression, for which he sought treatment. Once he answered "yes," conditions were placed on him so that each time he needed to re-apply to the law society for activities to advance his career, the issue of his mental competence was re-visited. Despite not having had further episodes of depression, after being admitted to the Bar, he was asked for multiple medical reports and required to see a psychiatrist, he was investigated by two private investigators; and he experienced delays not imposed on others. A human rights tribunal concluded that the question was discriminatory, and caused systemic discrimination against people with the named mental conditions. This was in part because the process following a “yes” answer to the question exposed applicants to a more intensive (and intrusive) evaluation than others. The tribunal also heard evidence that 77% of people who answered “yes” to the question had conditions put on their membership. The tribunal noted that the factors in the case were “sufficient to constitute an adverse impact, especially when viewed against the historical disadvantage and present-day social stigma experienced by people diagnosed with mental disabilities.”[143]

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.

To show systemic discrimination, a link between the institution’s policies or practices and the impact on the individual or the group must be established.[144] 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.[145]

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