HIV/AIDS as a disability (section 10)
The OHRC recognizes that AIDS and other HIV-related medical conditions are disabilities under the Code. "Disability" is defined under section (s.) 10 of the Code. All persons infected with HIV or with HIV-related illness, or who are believed to have the virus, including those who are asymptomatic, are fully protected against discrimination in services (s. 1); housing (s. 2); contracts (s. 3); employment (s. 5); and membership in trade unions (s. 6).
Protection under the Code is also extended to persons on the ground of "sexual orientation." Persons identified by this prohibited ground of discrimination are often believed to be at high risk of contracting AIDS or to be carriers of HIV. The erroneous perception of AIDS as a "gay disease" is a form of stereotyping that the Code prohibits. Discrimination on the grounds of sexual orientation is unlawful.
Protection against discrimination and harassment (s. 10)
Persons who have or have had, or are believed to have or have had, AIDS or HIV-related medical conditions are protected from discrimination and harassment in employment, housing, services, contracts and membership in trade unions. Harassment is defined under s. 10 of the Code and means:
engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
Discrimination because of association (s. 12)
The Code also protects against discrimination on the basis of "association." Section 12 of the Code states that:
A right under Part I is infringed where the discrimination is because of a relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.
This means that a person who is associated with anyone who is identified by a prohibited ground of discrimination, such as a co-worker, a friend or a relative of the person who is HIV-positive, cannot be discriminated against because of this association.
Example: A rental property manager would be in breach of the Code if she refuses to rent a house to a representative of an AIDS advocacy organization because of the organization's association with persons identified by their disability.
Duty to accommodate
In addition to the specific grounds of prohibited discrimination mentioned above, s. 17 of the Code sets out a broad duty to accommodate the needs of persons with disabilities, short of undue hardship.
Example: An employer is obliged to accommodate the needs of a person with AIDS in order to assist the person in "performing or fulfilling the essential duties or requirements" of the job. This might involve taking steps to redefine work duties and providing temporary work assignments to accommodate health-related absences.
"Short of undue hardship" is a standard that is applied to the person required to make the accommodation. It takes into consideration costs, available sources of funding, as well as health and safety factors (see further the OHRC's Policy and Guidelines on Disability and the Duty to Accommodate).
It is well established in human rights case law that customer or third party preferences are not to be considered in assessing undue hardship.
Example: It is discriminatory for an employer to claim that customers and/or other employees would object to hiring a person who is HIV positive.