Human Rights Law – Discrimination during the Hiring Process and against Disabled and Female Employees

by | May 18, 2012 | For Employers

Human Rights Laws in Ontario

The human rights laws that govern Ontario employers are found within the Human Rights Code. Ontario employers must comply with the Human Rights Code (Code) which prohibits discrimination in employment on 14 grounds including: race, colour, sex, sexual orientation, age, marital status, family status, or disability. (a Prohibited Ground)

In our experience, most human rights issues arise during the hiring process or relate to disabled employees or female employees. In this blog, we will address these three issues.

  1. Discriminating in the hiring process

The Code prohibits discrimination in employment on a Prohibited Ground, and states that an infringement occurs where, among other things, a job application directly or indirectly classifies on a Prohibited Ground.

The Ontario Human Rights Commission (the Commission) has published at least four policies that are relevant to hiring; namely

–       Policy on employment-related medical information

–       Policy on drug and alcohol testing

–       Policy on requiring a driver’s license as a condition of employment

–       Policy on height and weight requirements

  1. Discriminating against disabled employees

The Code prohibits discrimination in employment because of disability unless the person is incapable of performing or fulfilling the essential job duties. A person cannot be found incapable unless accommodating the person would cause the employer undue hardship

The Commission has published a 40-page document entitled “Policy and Guidelines on disability and the duty to accommodate”.

  1. Discriminating against female employees

The Code prohibits discrimination in employment because of sex which includes the right to equal treatment because a woman is (or may become) pregnant, and the right not to be sexually harassed.

The Commission has published a 32-page document entitled “Policy on discrimination because of pregnancy and breastfeeding”, and a 37-page Guideline on developing human rights policies and procedures

Lessons to be Learned

  1. Generally, when making employment decisions, it should not matter to an employer whether an employee is: male or female; heterosexual or homosexual; white or of colour; married or single; Canadian or another nationality; or, disabled or able-bodied. Taking one of these grounds into account when making an employment decision is generally a violation of the Code.
  1. Generally, an employer should not ask whether an employee is disabled or speculate as to whether accommodation measures are needed. The onus is generally on the employee to disclose a disability and to identify any accommodation measures that are required.
  1. Although not required by law, we recommend that most employers introduce a human rights policy which defines sexual harassment and includes a internal complaint process
  1. The Policies and Guidelines published by the Commission do not have the force of law, however, the Human Rights Tribunal of Ontario can and does consider Commission policies at human rights hearings. We believe that certain Commission policies and guidelines interpret the Code too broadly.

If you have any questions about human rights in the workplace, please call us at 1-888-640-1728 or send an email to [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.



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