17. 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 stay unaware of discrimination or harassment of a person with a mental health disability or addiction, 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 with mental health or addiction disabilities are encouraged and empowered to take part at all levels.

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 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 the course of 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, whether or not it had any knowledge of, participation in, or control over these actions.

Example: Staff in a group home refuse to investigate a tenant’s allegation that another tenant is discriminating against her based on her sex and mental health disability. The organization operating the group home 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, since 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.[283]

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.

In general, managers and central decision-makers in an organization are part of the “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 the guidance of others. For example, a member of the bargaining unit who is a lead hand may be considered to be part of the “directing mind” of an organization.

There is also a clear human rights duty not to 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.[284]

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.[285]

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 take steps to address a harassing or poisoned workplace environment.[286]

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: In one case, a man with bipolar disorder alleged that he was subjected to cruel taunts and negative treatment by his co-workers based on his mental health disability, and a perception that he was gay. He alleged that his co-workers called him homophobic names, teased him for taking medication for his disability, called him “crazy,” and openly accused him of wanting to molest children. He brought these issues to the attention of his employer, but nothing changed. The HRTO found that the employer had breached the man’s right to be free from discrimination based on both disability and sexual orientation when it failed to investigate and address his complaints of harassment.[287]

An organization may respond to complaints about individual instances of discrimination or harassment, but they 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 punishing 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
• the promptness of the organization’s response 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
• how well the action taken was communicated to the person who complained.[288]

The following steps are some ways that organizations can prevent and eliminate discrimination against people with mental health disabilities or addictions in their organizations. Organizations should develop strategies to prevent discrimination based on all Code grounds, but should give specific consideration to people with psychosocial disabilities.

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

• a barrier prevention, review and removal plan
• anti-harassment and anti-discrimination policies
• an education and training program
• an internal complaints procedure
• an accommodation policy and procedure.

In its publication entitled, A policy primer: Guide to developing human rights policies and procedures,[289] the OHRC provides more information to help organizations meet their human rights obligations and take proactive steps to make sure their environments are free from discrimination and harassment.

Here are some things organizations should consider with respect to people with mental health or addictions issues when implementing barrier prevention, review and removal plans, developing human rights policies and procedures, and in education and training programs.

17.1 Barrier prevention, review and removal

Ensuring full accessibility means making sure that barriers to employment, services and housing for people with psychosocial disabilities are not embedded into new organizations, facilities, services or programs. It also means identifying and removing barriers where they already exist. A barrier removal process should include reviewing an organization’s physical accessibility, policies, practices, decision-making processes and overall culture.

Under the Accessibility for Ontarians with Disabilities Act, employers, service providers, many housing providers and the government will be required to comply with accessibility standards for people with disabilities. Part of complying with the standards means that government, large organizations and designated public sector organizations will have to develop accessibility plans to prevent and remove barriers to accessibility. 

The principles around designing inclusively and barrier removal apply to people with psychiatric disabilities or addictions as they do to people with mobility or other types of disabilities. However, these techniques may differ depending on the needs to be addressed. For example, the needs of people with psychosocial disabilities may at
times include needs related to concentration, memory, organization or communication.[290] An organization may need to focus more on its policies, procedures or organizational culture than on physical accessibility.

Example: A social housing provider starts a barrier review process with its staff and tenants and finds that organizational and attitudinal barriers – such as the existence of stereotyping about people with mental health and addiction issues and a lack of knowledge about how to ask for accommodation – are pressing barriers.

When designing inclusively and removing barriers, organizations should consult with people with psychosocial disabilities to gain a greater understanding of people’s diverse needs, and how to most effectively meet them. It is important that people with psychosocial disabilities have the opportunity to provide input into information-gathering processes and are consulted about the barriers that affect them.

Example: A medical centre reviews barriers to its service by interviewing its service users. It finds that low-income people with multiple mental health and addiction issues are not as likely to be long-term clients because they are consistently told that centre staff do not have the expertise to deal with their concerns. Based on service users’ feedback, the centre revises its practices by using a “team” approach so each client has better access to a number of professionals – medical professionals with expertise in different areas, social workers, housing workers and peer support workers. It seeks out continuing professional education on issues relating to mental health, addiction and other related issues, such as poverty, to increase the expertise of its staff. 

When identifying barriers, organizations should take into account that discrimination based on mental health issues or addictions may intersect with discrimination based on other Code grounds, including race, sex, and other kinds of disabilities. As well, someone may experience different barriers based on their level of income. Someone

who has a mental health issue, has low income, is a newcomer to Canada, and speaks English as a second language may experience unique barriers when trying to access a service compared to other service users. When collecting information about barriers, organizations should include ways for people to tell the organization about all of the circumstances that may prevent them from taking part equally.

17.2 Data collection and monitoring

Collecting numeric (quantitative) and word-based or pictorial (qualitative) data can help an organization understand the barriers that exist, and identify and address concerns that may lead to systemic discrimination. Some methods to do this include surveying employees, service users or tenants (in larger housing organizations), doing interviews, focus groups or asking for verbal or written feedback.[291] Where an organization suspects that systemic discrimination may be taking place, it should adopt proactive measures to address it including monitoring and, where appropriate, collecting data.  

Because of the stigma surrounding mental health and addictions, people may fear that their private information will be shared unnecessarily with others, with negative consequences. It helps to make surveys or data collection anonymous and ensure people will know how their information will be used and how it will be kept private.

Many people with mental health or addiction issues will not have access to mainstream methods of written surveys or doing interviews. They may be prevented from entering housing, employment or using a service altogether because of barriers such as poverty, isolation or homelessness. Consultation processes themselves must be accessible. For assistance on getting information from people from hard-to-reach populations, it may be helpful to contact accessibility consultants with expertise in mental health, or local agencies that are run by or work with people with mental health issues or addictions.

Information about barriers to accessibility, discrimination and harassment can be monitored through periodic data collection over time. Data collection can also help an organization understand if its efforts to combat discrimination, such as putting in place a special program, are helping or need to be modified.

17.3 Developing human rights policies and procedures

Developing anti-harassment and anti-discrimination policies, an internal human rights procedure, and an accommodation policy and procedure are part of an overall human rights strategy, but these should also be developed with the needs of people with psychosocial disabilities in mind.

For example, people with mental health issues and addictions should be explicitly referred to as protected under the ground of “disability.” An accommodation procedure should contemplate situations where a person is perceived to have an accommodation need related to a mental health issue or addiction but may be unable to disclose it. The organization should also outline how the confidentiality of people’s private medical information will be maintained in any procedures dealing with how people’s human rights concerns or accommodation requests will be dealt with.

Under the Occupational Health and Safety Act, all workplaces in Ontario are expected to develop harassment policies and review these at least annually. Harassment policies should explicitly include harassment based on a mental health issue or addiction. The AODA requires that obligated organizations develop, implement and maintain accommodation policies that govern how the organization will achieve accessibility.[292]

The stigma associated with mental health and addictions, lack of knowledge about one’s rights, and fear of reprisal are factors that may contribute to people not knowing how to complain or avoiding making a complaint, even where they feel their human rights are being violated. Organizations should make sure that they provide adequate information and training about complaint procedures, and clearly outline that people will not experience reprisal for making a complaint.[293]

Example: A college develops a human rights complaint procedure for its service users. In addition to putting it online, it consults with a mental health disability group and develops plain-language brochures in the major languages spoken in the community, and sends these out to diverse community agencies, legal clinics and hospitals across the municipality.

17.4 Education and training

Education and training on mental health, addictions and human rights is essential to developing a “human rights culture” within an organization that supports the values and principles of the Code. Without an understanding of human rights issues relating to people with mental health or addiction disabilities, and support for human rights principles, human rights policies and procedures will be less likely to succeed.

Under the AODA’s “Integrated Accessibility Standard,” organizations also have a duty to train their employees and others on human rights and accessibility. Every obligated organization[294] must make sure that training is given to employees, volunteers, people who help develop the organization’s policies, as well as others who provide goods services and facilities on behalf of the organization. The training must be provided on the requirements of the accessibility standard and on the Ontario Human Rights Code as it pertains to people with disabilities.[295]

Education on human rights works best when accompanied by 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. Education on mental health alone is not necessarily enough to change the behaviour of individuals or organizational culture.[296]

Example: A university implements an anti-stigma and human rights program around mental health to change individual attitudes and eliminate discrimination. In addition to providing education on mental health issues and human rights to students and staff, it reviews its policies and procedures to make sure they are not contributing to barriers to education. It also interviews students with mental health issues before the program and at points afterward, to see if the school environment has become more inclusive as a result. One barrier identified is that some professors unnecessarily expect students to disclose their diagnosis to receive classroom accommodation. To overcome this barrier, it develops a set of procedures, trains professors and staff and provides further information to students on accommodation.

Programs that focus on education, raising awareness and changing attitudes should also include evaluating whether behavioural change has resulted in the short and long term and if discriminatory barriers in the organization or system have changed as a result.

In addition to training that is required by the AODA, the following items could be integrated into a human rights training program on mental health and addictions:

• the types of barriers that people with psychosocial disabilities face in housing, employment and services (e.g. stereotypes)
• the rights of people with psychosocial disabilities under the Code
• the human rights system in Ontario, including how to file a human rights claim
• the specific obligations that an organization has to uphold people’s Code rights and ways it can do this 
• the organization’s human rights strategy and human rights policies and procedures, such as complaint procedures and anti-discrimination and harassment policies, and how these relate to people with mental health or addiction disabilities
• how the organization accommodates people with mental health disabilities or addictions
• how the organization or its employees, customers, tenants and others can be part of a broader cultural shift to being more inclusive of people with mental health issues or addictions. 

Human rights education should not be a one-time event. Ongoing training should be provided to address developing issues, and regular refreshers provided to all staff.

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