DISCRIMINATION, CODE-BASED HARASSMENT AND REPRISAL

Protected Characteristics

The Ontario Human Rights Code (Code) prohibits discrimination based on a protected ground in a protected social area.

Protected grounds are:

Race
Colour
Place of origin
Ancestry
Ethnic origin
Citizenship
Disability
Age
Creed
Sex/pregnancy
Family status
Marital status
Sexual orientation
Gender identity and gender expression
Record of offences (in employment only)

Protected social areas are:

Accommodation (housing)
Contracts
Employment
Goods, services and facilities
Membership in unions, trade or professional associations

Discrimination

Discrimination is adverse differential treatment, regardless of intent, related to a protected ground under the Code that results in harm. Discrimination can occur even if the protected ground is not the main reason for the adverse treatment or impact: it only needs to be a factor. Intention is not necessary for a finding of discrimination: it is the impact that matters.

A person’s identity can intersect with multiple Code grounds. People can also face discrimination through their association with persons protected under the Code.

The Code recognizes and protects positive programs and initiatives designed to relieve historical disadvantage, assist equity-deserving persons or groups achieve or attempt to achieve substantially equal opportunity, or contribute to the elimination of discrimination under the Code.

Harassment

Harassment is a course of vexatious comments or conduct rooted in a protected ground under the Code that is known or ought reasonably to be known to be unwelcome. It includes sexual harassment among other forms of harassment, including racial harassment.

Harassment can look like:

Inappropriate jokes based on a Code protected right
Using social media to bully, harass, intimate, threaten or bully an individual
Using discriminatory statements
Insulting gestures
Condescending or demeaning behaviour, among others

Poisoned Environment

A poisoned environment is a form of discrimination. It can be created when unwelcome conduct or comments are pervasive within the organization, resulting in a hostile environment for those belonging to a Code-protected group. Note that a poisoned environment is based on the nature of the comments or conduct and the subsequent impact on the affected individual, rather than the quantity in which the conduct occurs. On occasion, a single remark or action can be so significant that it results in a poisoned environment. Schools have an obligation to maintain a discrimination and harassment-free environment. Where a poisoned environment is found to exist, schools have an obligation to take steps to respond and elimite it.

Sexual Harassment

Sexual harassment is a course of vexatious comments or conduct due to sex, sexual orientation, gender identity or gender expression that is known or ought reasonably to be known to be unwelcome

Sexual Harassment can include:

Unwanted touching
Making sexist comments
Unwanted questions about a person’s sexuality, sex life or partner
Unwanted sexual advances or propositions
Stalking a person without their consent
Repeatedly asking for dates and not accepting no as an answer

Reprisal

Reprisal is an action or threat that is intended to be retaliation for seeking to claim or enforce a Code protected right. A right under the Code can be enforced when an individual objects to discrimination or discriminatory practices, makes a complaint to a supervisor, manager or to the Office of the HREA, or makes an application to the Human Rights Tribunal of Ontario.

Reprisal on a Code protected ground occurs when:

An action was taken against, or a threat was made to, the claimant
The alleged action or threat was related to the claimant having claimed, or trying to enforce a Code right, and
There was an intention on the part of the respondent to retaliate for the claim or the attempt to enforce the right

Reprisal can look like:

Intimidation or coercion
Suspension or discipline
Firing or threatening to fire an individual