The Code protects people from discrimination in specific situations. Under the Code, you have the right to be free from discrimination in five parts of society – called social areas – based on one or more grounds.
The five social areas are: employment, housing, services, unions and vocational associations and contracts.
Discrimination based on 17 different personal attributes – called grounds – is against the law under the Code. The grounds are: citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing) and record of offences (in employment).
Your rights under the Code are not violated unless the discrimination occurs in one of the social areas based on one or more of the protected grounds. For example, the Code does not apply if a stranger on the street insults you by making a racist comment, because this did not happen in a specific social area, such as at your job or in a restaurant.[1] The Code will also not apply if you feel you were treated differently in your job due to a personality conflict with your manager, because the treatment is not related to a ground such as your age, sex or race.
To establish discrimination under Ontario’s Human Rights Code, a claimant must show that:
A person discriminates “directly” when the action itself is discriminatory and when the person acts on his or her own behalf. For example, a building manager who refuses to rent an apartment because he prefers to rent to someone of his own ethnic background is discriminating directly.
“Indirect discrimination” is discrimination carried out through another person. For example, a building manager tells her superintendent not to rent to people of a certain ethnic group because their food “smells too much.” The manager can be named in the human rights claim because she used the superintendent indirectly to discriminate against people because of their ethnic origin.
Sometimes a rule or practice unintentionally singles out particular people and results in unequal treatment. This type of unintentional discrimination is called “constructive” or “adverse effect” discrimination. The Code also protects against this type of discrimination. For example, an employer has a rule that employees are not allowed to wear hats or head coverings. The rule is not intended to exclude people who wear head coverings for religious reasons, but it may have this effect. Unless an employer can show that a change or exception to the rule would be too costly or create a health and safety danger, the employer should agree to change the rule.
[1] For more information on racism and racial harassment, see the OHRC’s Policy and guidelines on racism and racial discrimination (2005).
You have the right to be free from discrimination when you receive goods or services, or use facilities. For example, this right applies to:
This section also applies to businesses, government, community agencies and other organizations in Ontario.
You must be at least 18 years old to file a human rights application based on age under this section. Parents or guardians can file applications on behalf of children and youth under 18.
The Code permits special discounts for older persons,[2] “golden age” passes and other benefits for persons over 65 years old. Limits on selling tobacco and alcohol to people under 19 are also allowed.
You have the right to education, community and other services that respect your sincerely held religious practices and beliefs.[3]
[2] For more information, see the OHRC’s Policy on discrimination against older persons because of age (2007).
[3] For more information, see the OHRC’s Creed case law review at www.ohrc.on.ca/en/creed-case-law-review (2012), or the Policy on creed and the accommodation of religious observances (1996).
The Code applies to terms and conditions in contracts and leases such as the amount of rent, security deposits, the need for guarantors, occupants’ rules and regulations, ending a lease and eviction.
Your right to housing without discrimination also includes suitable access to doors, laundry rooms, swimming pools, other common areas, repairs and other aspects of housing.
You must be at least 18 years old to file a human rights application based on age, or 16 or 17 years old when you have legally withdrawn from your parents’ authority. If you claim this right when you are 16 or 17 years old, you have the same legal responsibilities you would if you were 18 years old.
A landlord cannot discriminate because of a person’s income source, such as social assistance, family benefits, disability pension, or other forms of public assistance.
The right to be free from discrimination in housing does not apply if you share housing and a bathroom or kitchen facility with the owner or the owner’s family.
The right to be free from discrimination based on sex does not apply to residences that are male-only or female-only. An owner of a residence can restrict access to that residence to men only or women only. Trans people should be provided access to these residences in accordance with their lived gender identity.
Landlords can use income information, credit checks, credit references, rental history, guarantees or other similar business practices for selecting tenants, as long as they do so in a way that is consistent with the Code and its regulations.
Regulation 290/98 under the Code allows landlords to request income information from a prospective tenant only if the landlord also requests credit references, rental history, and credit checks. The landlord must consider income information together with all the other information obtained.
The Regulation specifically reaffirms that none of these assessment tools may be used in an unfair way to screen out prospective tenants based on Code grounds. The criteria must be used in a genuine and non-discriminatory way.
It is discrimination, under the ground of family status, if you are denied housing because you have children.[5] Adult-only buildings are not permitted in Ontario except for specific situations such as subsidized seniors’ residences or care facilities.
Everyone has the right to be free from harassment in housing because of Code-protected grounds. “Harassment” means comments or actions that are unwelcome to you or should be known to be unwelcome. You have the right to be free from humiliating or offensive conduct that is based on one or more of the Code grounds. Harassment requires a “course of conduct,” which means that a pattern of behaviour or more than one incident is usually required. For example, a landlord’s repeated demeaning comments about how a tenant uses a wheelchair could be harassment in housing. However, one incident may be enough to support a finding of harassment where the incident creates a poisoned environment.
You might feel that your housing is hostile or unwelcoming to you because of insulting or degrading comments or actions that have been made about you or others based on a ground in the Code. When comments or actions of this kind have an influence on others and how they are treated, this is known as a “poisoned environment.” A poisoned environment cannot, however, be based only on your personal views. You must have facts to show that an objective person would see that the comments or conduct would make a person feel unwelcome based on Code grounds.
[4] For more information on your right to be free from discrimination in housing, see the OHRC’s Policy on human rights and rental housing (2009).
[5] For more information, see the OHRC’s Policy and guidelines on discrimination because of family status (2007).
Every person having legal capacity has a right to contract on equal terms without discrimination because of any Code ground.
A contract is a legal agreement. It can be a written or verbal agreement.
The right to enter into a contract on equal terms covers all steps in the contract, including the offer, acceptance, price or even rejection of a contract. The Code covers all types of contracts, including contracts to buy a house, condominium or other type of residential accommodation, and contracts for buying a business, such as office or retail space.
For example, an automobile manufacturer cannot refuse to enter into a contract with the owner of a car dealership because the owner is gay.
Every person has the right to equal treatment in employment without discrimination based on Code grounds. In Ontario, about three-quarters of all human rights claims come from the workplace.
Employment is used in a very general way in the Code. Employees, independent contractors[7] and volunteers are covered.
Human rights applications can be filed against employers – and also against contractors, unions or boards of directors. Employers and unions have a joint duty to make sure that workplaces are free of discrimination and harassment.
The right to “equal treatment with respect to employment” covers applying for a job, being recruited, training, transfers, promotions, terms of apprenticeship, dismissal and layoffs. It also covers rate of pay, overtime, hours of work, holidays, benefits, shift work, discipline and performance evaluations.
People with disabilities have the right to be provided with equipment, services or devices that will allow them to do their job.[8]
In employment, you must be at least 18 years old to file a claim stating that you were discriminated against because of your age. There is no age maximum on the right to freedom from discrimination in the workplace because of age. This means that older persons, who feel that they have discriminated against based on their age, may file a human rights claim.[9]
When you apply for a job, you cannot be asked if you have any kind of criminal record. However, employers can ask whether you have been convicted of a federal offence for which you have not received a pardon. You may be asked during an interview whether you are bondable, if that is a requirement for the job.
If you are a member of a union, you may have the right to file a grievance under your collective agreement. Check with your shop steward or representative.
Employers cannot come to an agreement with a union or an employee that some or all of the Code does not apply to them. Also, if a union does not support an employer’s efforts to meet its obligations under the Code, a human rights application may be filed against the union.
You have the right to employment that respects your sincerely held beliefs and practices. You may have religious or creed-based needs such as prayer breaks, religious or creed-based days off, and dress requirements. If you ask your employer to meet these needs, they should be met unless your employer can show that it would prevent you from doing the essential duties of your job, or would cause undue hardship based on costs or health or safety risks.
In Ontario, employers can meet their duty to accommodate time off for religious holy days by searching for solutions that allow time off without adverse employment consequences, including a loss of pay. However, forcing an employee to use vacation time instead of exploring other options would likely be found discriminatory.[11] Providing several alternatives and choices is always preferable.
Minimum standards for height and weight sometimes unintentionally screen out certain job applicants, such as women and racialized persons. Such a standard is only allowed if it:
The ultimate issue is whether the person responsible for accommodation has shown that accommodation has been provided up to the point of undue hardship.
If you believe you have been discriminated against because of your language or accent, you can make a human rights claim based on a number of grounds, such as ancestry, ethnic origin, place of origin and race.
An employer can require that you speak English fluently if it is a genuine job requirement. An employer cannot use language or accent as a way to screen out racialized people or people of particular ethnic origins where language fluency is not essential to the job.
For example, an employer refuses to hire a person from Spain as a school bus driver because he does not speak fluent English. However, being fluent in English is not essential to the job. This could be discrimination because of place of origin.
Drug and alcohol dependencies, as well as perceived dependencies, may be considered a form of disability under the Code. While not all people with drug and alcohol dependencies see themselves as having a disability, they are protected under the Code against discrimination in the workplace based on the ground of disability.
Testing for alcohol and drug use is a form of medical examination. Employment-related medical examinations or questions, as part of the job screening process, are prohibited. Medical examinations to determine the ability to do essential job duties should only be used after a conditional offer of employment has been made, preferably in writing.
If an employer cannot show that it has an effect on job safety and performance, drug and alcohol testing has been found to be a violation of employee rights.
Employment agencies cannot discriminate. They also cannot discriminate at the request of a client. For example, an employer asks an agency to send them a young, attractive woman for a receptionist position. This would be discrimination based on age and sex.
Section 23 of the Code talks about other issues in employment, such as job applications, medical examinations or inquiries, and interviews.
“Harassment” means comments or actions that are unwelcome to you or should be known to be unwelcome. You have the right to be free from humiliating or annoying behaviour that is based on one or more Code grounds.
Harassment requires a “course of conduct,” which means that a pattern of behaviour or more than one incident is usually needed. It doesn’t matter what type of business or employment it is – harassing behaviour based on Code grounds in any employment setting is prohibited under the Code.[14] Harassment in the workplace is also prohibited under the Occupational Health and Safety Act.[15]
You might feel that your workplace is hostile or unwelcoming to you because of insulting or degrading comments or actions that have been made about you or others based on a Code ground. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a “poisoned environment.” A poisoned environment cannot, however, be based only on your personal views. You must have facts to show that an objective person would see the comments or conduct resulting in unequal or unfair terms and conditions.
[6] For more detailed information, see the OHRC’s publication, Human Rights at Work (2008).
[7] See Sutton v. Jarvis Ryan Associates (2010]) HRTO 2421 (CanLII) and Ketola v. Value Propane, (2002) HRTO 46510 (CanLII)
[8] For more information, please see the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (2001).
[9] Please see the Commission’s Policy on Discrimination Against Older Persons Because of Age, (2007).
[10] For more information about creed and employment, please see the Commission’s Creed Case Law Review at www.ohrc.on.ca/en/creed-case-law-review (2012), and the Commission’s Policy on creed and the accommodation of religious observances (1996).
[11] Shapiro v. Peel (Regional Municipality)(No. 2)(1997), 30 C.H.R.R. D/172 (Ont. Bd. Inq.)
[12] Further information can be obtained in the Commission’s Policy on discrimination and language (1996). For a more complete discussion on racism and racial discrimination, please see the Commission’s Policy and guidelines on racism and racial discrimination, (2005).
[13] For more detailed information, please see the Commission’s Policy on drug and alcohol testing (2000) and Human Rights at Work (2008).
[14] See Lombardi v. Watson Enterprises, (2012) HRTO 1675 (CanLII)
[15] See the Ministry of Labour’s website for more information at www.labour.gov.on.ca/english/hs/topics/workplaceviolence.php
This section deals with your right to join and be treated equally in a union, professional or other vocational association.
This applies to membership in trade unions and self-governing professions, including the terms and conditions of membership, rates of pay and work assignments. It would include employees’, employers’ and managers’ associations.
“Harassment” in this section means comments or actions based on sex, sexual orientation, gender identity or gender expression that are unwelcome to you or should be known to be unwelcome. They may include humiliating or annoying conduct. Harassment requires a “course of conduct,” which means that a pattern of behaviour or more than one incident is usually required for a claim to be made to the Tribunal. However, a single significant incident may be offensive enough to be considered sexual harassment.
Women and men have the right to be free from sexual and gender-based harassment. Sexual harassment includes unwelcome sexual contact and remarks, leering, inappropriate staring, unwelcome demands for dates, requests for sexual favours, spreading sexual rumours (including on-line) and displays of sexually offensive pictures or graffiti. For example, an employer’s repeated and vulgar sexual comments to an employee could constitute sexual harassment.
The comments or conduct do not have to be sexual in nature. Someone may tease or bother you because of gender-based ideas about how men or women “should” look, dress or behave. If you are a trans person, you are protected from degrading comments, insults or unfair treatment because of your gender identity or gender expression.[17]
You might feel that your workplace is hostile or unwelcoming to you because of insulting or degrading comments or actions that have been made about you or others based on the ground of sex. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a “poisoned environment.” A poisoned environment cannot, however, be based only on your personal views. You must have facts to show that an objective person would see the comments or conduct resulting in unequal or unfair terms and conditions.
You have the right to be free from unwelcome advances or requests for sexual favours made by a boss, supervisor or other person in a position of authority.
Example: A supervisor makes unwanted sexual advances to an employee. In this situation, it may be implied, directly or indirectly, that a promotion is at risk of being denied if the person does not agree to accept the advances.
If the supervisor punishes the person because he or she rejected the advance, this is called a “reprisal”. This kind of “getting even” is not allowed under the Code.
Example: A female employee is fired or demoted because she refused a “sexual proposition” from her manager.
If you are being harassed at work and have concerns about your safety, alert someone you believe can help you. This could be your employer, police, local community agencies and/or women’s shelters. You can also contact your local Ministry of Labour office to report incidents of workplace harassment or violence.[18]
[16] For more detailed information, see the OHRC’s Policy on preventing sexual and gender-based harassment (2011).
[17] For more information, see the OHRC’s Policy on discrimination and harassment because of gender identity (2000). Note that in 2012, “gender identity” and “gender expression” were added as grounds of discrimination in the Ontario Human Rights Code and the OHRC is currently updating this policy.
If you believe that your rights under the Code have been violated, you can contact the Legal Support Centre, consult a lawyer of your own choosing, file a human rights application with the Tribunal, or file a grievance under your collective agreement to protect your rights. You may not be punished or threatened with punishment for trying to exercise these rights. Any attempt or threat to punish you is called a “reprisal.”
The following examples may be a form of punishment or “reprisal” and can result in another human rights claim:
You might feel that your workplace or housing is hostile or unwelcoming to you because of insulting or degrading comments or actions that have been made about you or others based on a Code ground. When comments or conduct of this kind have an influence on others and how they are treated based on Code grounds, this is known as a “poisoned environment.”
A poisoned environment cannot, however, be based only on your personal views. There must be facts to show that an objective person would see that the comments or conduct would make a person feel unwelcome or uncomfortable at work.
Example
A restaurant owner makes negative remarks about African-Canadians. A co-worker of Chinese origin believes that that work environment is “poisoned” for all racialized people because of these comments.