5. Anti-harassment and anti-discrimination policies

Anti-harassment and anti-discrimination policies make it clear that harassment and discrimination will not be tolerated, and set standards and expectations for behaviour. An anti-harassment or anti-discrimination policy should describe the types of behaviour that are discriminatory or harassing, and send the message that these issues are taken seriously. The policy should also set out roles and responsibilities. These human rights policies should be linked to existing organizational policies and integrated into the way the organization operates on a daily basis.

B. Considerations

Harassment is a specific form of discrimination. Because harassment raises unique issues, some organizations have separate policies for harassment and for other forms of discrimination.

As well, because harassment and discrimination related to the various Code grounds often manifest themselves differently, some organizations have specific policies related to discrimination and/or harassment based on sexual orientation, race and race-related grounds, sex, gender identity and gender expression, etc.^[14]

Anti-harassment and anti-discrimination policies set out expectations and standards, while complaint procedures set out how potential violations of these policies will be addressed. Many organizations choose to combine their anti-harassment/anti-discrimination policies and procedures into a single document.

In addition, organizations can develop a policy on competing rights to address situations where rights in the workplace may come into conflict. This policy can be part of broader anti-discrimination/anti-harassment policies or a separate document. The OHRC’s Policy on competing rights provides guidance as to what this type of organizational policy should contain.

C. Elements

Note: The sample wording provided in the sections below relates to employment, but can be modified to address housing or services. The sample wording is provided only as an example. There is no single best policy or procedure. You will always need to review policies and procedures to make sure they comply with current human rights law and policy and are appropriate for your organization.

1. Organization commitment

A policy should contain a clear statement of the organization’s commitment to creating and maintaining respect for human rights, and fostering equality and inclusion.

XYZ Organization is committed to providing an environment free of discrimination and harassment, where all individuals are treated with respect and dignity, can contribute fully and have equal opportunities.

Under the Ontario Human Rights Code, every person has the right to be free from harassment and discrimination. Harassment and discrimination will not be tolerated, condoned or ignored at XYZ Organization. If a claim of harassment or discrimination is proven, disciplinary measures will be applied, up to and including termination of employment.

XYZ Organization is committed to a comprehensive strategy to address harassment and discrimination, including:

• providing training and education to make sure everyone knows their rights and responsibilities
• regularly monitoring organizational systems for barriers relating to Code grounds
• providing an effective and fair complaints procedure
• promoting appropriate standards of conduct at all times.

2. Policy objectives

The policy should set out its objectives, such as promoting human rights within the organization, preventing harassment and discrimination, and defining principles and standards for behaviour.

The objectives of this Policy are to:

• Make sure that members, clients and associates of XYZ Organization are aware that harassment and discrimination are unacceptable practices and are incompatible with the standards of this organization, as well as being a violation of the law
• Set out the types of behaviour that may be considered offensive and are prohibited by this policy.

3. Applying the policy

The policy should set out the activities involved and who it applies to. In employment, for example, Code protections have been interpreted broadly, to include temporary, casual and contract staff, as well as volunteers. Employees are protected against harassment and discrimination by co-workers, management and superiors – and they are also protected from the actions of others who enter the employment context, such as suppliers or clients. Employees may be protected while off the work site, or outside of normal working hours, where activities are connected to the workplace. Because employees are entitled to work in an environment free of harassment and discrimination from clients, suppliers or others who enter the employment context, publicly post the policy or make it available
to visitors.

The Code also requires organizations to avoid harassment and discrimination in the services they offer to the public. This includes dealings with customers, potential customers and business associates such as suppliers.

In rental housing, the right to be free from harassment applies both to tenants and applicants. Landlords may be held liable if they do not take steps to ensure that tenants are protected from harassment by other tenants, or by people visiting the premises, such as maintenance and other support staff.

The right to freedom from discrimination and harassment extends to all employees, including full-time, part-time, temporary, probationary, casual and contract staff, as well as volunteers, co-op students, interns and apprentices.

It is also unacceptable for members of XYZ Organization to engage in harassment or discrimination when dealing with clients, or with others they have professional dealings with, such as suppliers or service providers.

This policy applies at every level of the organization and to every aspect of the workplace environment and employment relationship, including recruitment, selection, promotion, transfers, training, salaries, benefits and termination. It also covers rates of pay, overtime, hours of work, holidays, shift work, discipline and performance evaluations.

This policy also applies to events that occur outside of the physical workplace such as during business trips or company parties.

4. List and explain protected grounds

The Human Rights Code prohibits discrimination in five parts of society, called “social areas” – employment, housing, services, contracts and membership in trade, vocational and professional associations. Protection is offered based on 17 grounds (see below). In your policy, set out the applicable Code grounds, together with definitions where necessary. Note that the Code grounds vary somewhat, depending on the social area involved. The ground of “record of offences” applies only in the social area of employment, while the ground of “receipt of public assistance” applies only in housing.

While the Code prohibits discrimination because of pregnancy under the ground of sex, it may be helpful for policies to explicitly identify discrimination and harassment based on pregnancy, as many are unaware of this Code protection.

The policy can also note that people may experience discrimination and harassment based on the intersection of multiple grounds of discrimination (intersectionality). For example, a person who experiences harassment because she is a Muslim woman can file a complaint based on both sex and creed.

Organizations may choose to extend protection beyond that mandated by the Code. For example, some organizations prohibit any form of psychological harassment, or discrimination and harassment based on political opinion.

This policy prohibits discrimination or harassment based on the following grounds, and any combination of these grounds:

• Age
• Creed (religion)
• Sex (including pregnancy and breastfeeding)
• Sexual orientation
• Gender identity
• Gender expression
• Family status (such as being in a parent-child relationship)
• Marital status (including married, single, widowed, divorced, separated or living in a conjugal relationship outside of marriage, whether in a same-sex or opposite-sex relationship)
• Disability (including mental, physical, developmental or learning disabilities)
• Race
• Ancestry
• Place of origin
• Ethnic origin
• Citizenship
• Colour
• Record of offences (criminal conviction for a provincial offence, or for an offence for which a pardon has been received)
• Association or relationship with a person identified by one of the above grounds
• Perception that one of the above grounds applies.

5. Define key concepts

Define key concepts, consistent with human rights law and policy. Offer examples to clarify the concepts.

It may be helpful to provide definitions of related concepts, such as racism, heterosexism, ageism, etc., and to outline common manifestations of discrimination related to specific Code grounds. Consult the relevant OHRC policies for more information.

It is important to note that people experiencing harassment may not outwardly object to the harassing comments or conduct. People may feel unable to object. For example, they may be in a vulnerable situation and be afraid of the consequences of speaking out. It doesn’t matter if someone voices objections or not to the person making the unwelcome comments – they can still make a complaint and the behaviour can still be found to be harassment.

The following behaviour is prohibited:

Discrimination: means any form of unequal treatment based on a Code ground, whether imposing extra burdens or denying benefits. It may be intentional or unintentional. It may involve direct actions that are discriminatory on their face, or it may involve rules, practices or procedures that appear neutral, but disadvantage certain groups of people. Discrimination may take obvious forms, or it may happen in very subtle ways. Even if there are many factors affecting a decision or action, if discrimination is one factor, that is a violation of this policy.

Harassment: means a course of comments or actions that are known, or ought reasonably to be known, to be unwelcome. It can involve words or actions that are known or should be known to be offensive, embarrassing, humiliating, demeaning or unwelcome, based on a ground of discrimination identified by this policy. Harassment can occur based on any of the grounds of discrimination.

Examples of harassment include:

• Epithets, remarks, jokes or innuendos related to a person’s race, gender identity, gender expression, sex, disability, sexual orientation, creed, age, or any other ground
• Posting or circulating offensive pictures, graffiti or materials, whether in print form or via e-mail or other electronic means
• Singling out a person for humiliating or demeaning “teasing” or jokes because they are a member of a Code-protected group
• Comments ridiculing a person because of characteristics that are related to a ground of discrimination. For example, this could include comments about a person’s dress, speech or other practices that may be related to their sex, race, gender identity or creed.

If a person does not explicitly object to harassing behaviour, or appears to be going along with it, this does not mean that the behaviour is okay. The behaviour could still be considered harassment under the Code.

Sexual and gender-based harassment: sexual harassment is a form of harassment that can include:

• Gender-related comments about a person’s physical characteristics or mannerisms
• Paternalism based on gender which a person feels undermines his or her self respect or position of responsibility
• Unwelcome physical contact
• Suggestive or offensive remarks or innuendoes about members of a specific gender
• Propositions of physical intimacy
• Gender-related verbal abuse, threats or taunting
• Leering or inappropriate staring
• Bragging about sexual prowess or questions or discussions about sexual activities
• Offensive jokes or comments of a sexual nature about an employee or client
• Rough and vulgar humour or language related to gender
• Display of sexually offensive pictures, graffiti or other materials including through electronic means
• Demands for dates or sexual favours.

Sexual Solicitation: this policy prohibits sexual solicitations or advances by any person who is in a position to grant or deny a benefit to the recipient of the solicitation or advance. This includes managers and supervisors, as well as co-workers where one person is in a position to grant or deny a benefit to the other. Reprisals for rejecting such advances or solicitations are also not allowed.

Poisoned environment: a poisoned environment is created by comments or conduct (including comments or conduct that are condoned or allowed to continue when brought to the attention of management) that create a discriminatory work environment. The comments or conduct need not be directed at a specific person, and may be from any person, regardless of position or status. A single comment or action, if sufficiently serious, may create a poisoned environment.

6. Roles and responsibilities

Set out the roles and responsibilities of the various parties present in the organization.

All persons present in XYZ organization are expected to uphold and abide by this policy, by refraining from any form of harassment or discrimination, and by cooperating fully in any investigation of a harassment or discrimination complaint.

Managers and supervisors have the additional responsibility to act immediately on observations or allegations of harassment or discrimination. Managers and supervisors are responsible for creating and maintaining a harassment- and discrimination-free organization, and should address potential problems before they become serious.