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Lecture 3

LAW 529 Lecture Notes - Lecture 3: Ontario Human Rights Code, Chapter 27, The Employer

Law and Business
Course Code
LAW 529
Pnina Alon- Shenker

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Chapter 27 Discrimination
General Rule
Canadian human rights codes require the employer to maintain a workplace that does not
violate any of the prohibited grounds of discrimination and that is free from workplace
and sexual harassment.
What is Discrimination?
Discrimination is not defined in the Code.
The meaning has expanded over time from intentional acts of discrimination to employer
standards, requirements, policies or other qualifications that unintentionally result in
discriminatory treatment of certain groups or individuals.
o This is reflected in the concept of “constructive discrimination.” [S. 11 of the
Ontario Code]
Prohibited Grounds of Discrimination Chapter 27
The Code prescribes the following prohibited grounds of discrimination in employment:
o S. 5. (1) Every person has a right to equal treatment with respect to employment
without discrimination because of race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation, gender identity, gender
expression, age, record of offences, marital status, family status or disability
These are personal or group characteristics that, prima facie (at first sight), cannot form
the basis for treatment or decision-making in employment.
A sustainable claim of discrimination must fall within one of the prohibited grounds.
Canadian human rights codes vary in their prohibited grounds of discrimination.
Prohibited Grounds
o Mental and physical disabilities are included;
o Drug and alcohol addictions qualify as disabilities;
o Not every ailment qualifies as a disability.
Temporary or to-be-expected impairments are not included.
o Not defined, but interpreted to include pregnancy [S. 10 (2)] and transgendered
o Also includes sexual harassment. (Ref. Janzen v. Platy Enterprises Ltd., [1989]
o Includes religious belief, but not political belief.
Sexual Orientation
o Refers to gays, lesbians, bisexuals and heterosexuals.
o Effective December 12, 2006, age is defined as anyone age 18 and over (the cap
at age 64 was removed).
Record of Offences
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o Refers to a criminal offence for which a pardon has been granted. Also includes
provincial offences.
Marital Status
o Includes the status of being married, widowed, single, divorced, separated or
living common law.
Family Status
o Includes being in a parent and child relationship and the actual identity of family
Gender Identity and Gender Expression
o Includes the ways individuals experience and express their gender and protects
transgendered and transsexual workers from discrimination.
Harassment describes a form of prohibited conduct and not a personal or group
The Code
o S. 5. (2) prohibits harassment in the workplace on any of the prohibited grounds
of discrimination;
o S. 7. (2) and (3) prohibits sexual harassment and sexual solicitation in the
Harassment is defined as “engaging in a course of vexatious comment or conduct that is
known or ought reasonably to be known to be unwelcome.”
o “Course of vexatious comment or conduct” suggests that more than a single
incident typically is required;
o If the comment or conduct is sufficiently egregious, there can be a finding of
harassment from a single incident;
o It is no defence to say that you were not aware that your comments or actions
were unwelcome;
o If you are put on notice by the recipient that the comments or actions are not
welcome, that is sufficient.
Defences and Exemptions Chapter 28
The Ontario Code permits discrimination in prescribed situations and under prescribed
Once the complainant has made a prima facie case of discrimination, the onus is on the
employer to justify the discrimination.
Analytical Process
Step 1
o Has the complainant established a prima facie case of discrimination? If yes,
Step 2
o Is the discrimination permitted by one of the statutory defences under the code?
The exemptions under the Code are:
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