The Supreme Court of Canada has made it clear that society must be designed to include all people, including members of a Code-protected group.[10] It is no longer acceptable to structure systems in a way that ignores needs or barriers related to Code grounds. Instead, systems should be designed so they do not create physical, attitudinal or systemic barriers. Whenever an organization is constructing new buildings, launching new websites, setting up new policies and procedures, offering new services, or buying new equipment, design choices should be made that do not create barriers for persons identified by Code grounds. This means that organizations should take a proactive approach and incorporate a human rights mindset into all that they do.
In addition, where systems and structures already exist, organizations should be aware of the possibility of systemic barriers, and actively seek to identify and remove them. Where barriers have been identified, organizations must remove them rather than making “one-off” accommodations.
A. Barrier review
Barrier review is a large and complex subject and can only be discussed briefly here. The steps for reviewing barriers will differ depending on the size, nature and complexity of the organization, and on whether the review is focussing on service, employment or housing barriers.
A barrier review should include looking at:
- Physical accessibility: Review physical premises to identify barriers preventing equal access for persons with disabilities, including persons with sensory, environmental or intellectual disabilities.[11] While the Ontario Building Code sets out minimum standards for accessibility, compliance with requirements in effect at the time of construction or renovation is no guarantee that the physical environment meets the standards required by the Human Rights Code. The Code has primacy over the Building Code – which means it takes precedence – and compliance with the Building Code is no defence to a claim of discrimination under the Human Rights Code.[12]
- Organizational policies, practices and decision-making processes: These may be either formal or informal. For example, in the area of employment, policies and practices on recruitment, selection, compensation, training, promotion and termination may contain barriers to people based on Code grounds.[13] A frequent barrier is the lack of formal policies and practices, which can allow subjective considerations and differing standards to be applied. The OHRC’s policies on specific Code grounds and social areas provide examples of frequently encountered barriers.
- Organizational culture: Organizational culture includes shared patterns of informal social behaviour, such as communication, decision-making and interpersonal relationships. These practices are the evidence of deeply held and largely unconscious values, assumptions and behavioural norms. An organizational culture that is not inclusive can marginalize or exclude persons identified by Code grounds.
B. Barrier removal plans
Once barriers to inclusion have been identified, organizations should develop plans to remove them. Plans should:
- Set specific, measurable goals for removing identified barriers
- Create clear timelines for achieving these goals
- Allocate adequate resources to meet these goals
- Ensure accountability and responsibility for meeting goals
- Include a mechanism for regularly reviewing and evaluating progress towards the identified goals.
[10] In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [hereinafter “Meoirin”], the Supreme Court of Canada stated:
Employers designing workplace standards owe an obligation to be aware of both the differences between individuals and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. [at 38]
[11] Considerations for an accessibility review are set out in the OHRC’s 2001 Policy and guidelines on disability and the duty to accommodate, available online at www.ohrc.on.ca. The OHRC’s publication, Dining Out Accessibly, also available online, provides an example of an approach
to reviewing and addressing accessibility issues, in the context of the restaurant industry. The Accessibility Directorate of Ontario provides information and resources on accessibility planning: www.mcss.gov.on.ca/mcss/english/pillars/accessibilityOntario.
[12] Quesnel v. London Educational Health Centre, supra, note 1.
[13] Employers may find of some assistance the materials that the Canadian Human Rights Commission has prepared to help employers with conducting employment systems reviews under the Employment Equity Act. See in particular the December 2002 Employment Systems Review: Guide to the Audit Process, available online at www.chrc-ccdp.ca. The Appendix to the OHRC’s Policy on racism and racial discrimination summarizes common workplace policies, practices and decision-making processes that may lead to systemic discrimination based on race and race-related grounds.