Part II - The policy framework

4. Discrimination based on sexual orientation

The Code provides that every person has the right to be treated equally without discrimination because of sexual orientation. The purpose of anti-discrimination laws is to prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping or political or social prejudice.

There are several ways of defining and identifying discrimination based on sexual orientation. Discrimination because of sexual orientation includes any distinction, including exclusion, restriction or preference based on sexual orientation, that results in the impairment of the recognition of human rights and fundamental freedoms.

In Andrews v. Law Society of British Columbia,[31] the Supreme Court of Canada suggests that discrimination may be described as any distinction, conduct or action, whether intentional or not, but based on a person’s sexual orientation, that has the effect of either imposing burdens on an individual or group that are not imposed upon others, or withholding or limiting access to opportunity, benefits and advantages available to other members of society.

In the context of equality claims under s. 15 of the Charter, the Supreme Court of Canada has offered the following three inquiries as a tool for determining whether discrimination has occurred:[32]

  1. Differential treatment
    Was there substantively differential treatment, either because of a distinction, exclusion or preference, or because of a failure to take into account the individual’s already disadvantaged position within Canadian society?
  2. An enumerated ground
    Was the differential treatment based on an enumerated ground, in this case sexual orientation?
  3. Discrimination in a substantive sense
    Finally, does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, an individual? The discrimination might be based on stereotypes of a presumed group or personal characteristics, or might perpetuate or promote the view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society who is equally deserving of concern, respect and consideration. Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?

5. Forms of discrimination based on sexual orientation

Discrimination can take many forms. In many cases it may be direct and intentional, in which an individual or organization treats another person unequally or differently because of sexual orientation.

Example: An employer terminates an employee because of her sexual orientation and her decision to ”come out” at the workplace as a lesbian.[33]

Discrimination can also take place in more subtle and less direct ways. For example, business may wish to refuse employment to gay or lesbian applicants because they think their clients will disapprove. However, it is a clearly established principle in human rights law that customer preference can not be used to justify a discriminatory act.[34] If a person or organization causes or requires another to act on his or her behalf and to discriminate against someone because of their sexual orientation, both parties may be liable.

Example: A landlord has a rule that same-sex couples must rent a two-bedroom unit in her apartment building, while opposite-sex couples can rent one-bedroom apartments. If a tenant refuses to sublet the apartment to a same-sex couple based on the landlord's "rule,” then both the landlord and the tenant may be named as a respondents to a human rights claim.

Similarly, a placement agency may not refuse work to a bisexual, lesbian or gay person on the instruction of the company contracting their services.

Subtle forms of discrimination can often only be detected upon examining all of the circumstances. Individual acts themselves may be unambiguous or explained away, but when viewed as part of the larger picture, may lead to an inference that discrimination based on sexual orientation was a factor in the treatment a person received.

Example: A woman is one of four people granted job interviews from a pool of several dozen applicants who sent resumes by mail. When she appears in person, the interviewer seems surprised and uncomfortable, does not make eye contact and seems to hurry through the interview. The woman feels that the interviewer assumed that she was a lesbian based on aspects of her gender presentation, such as her hairstyle and clothing. She later learns that she did not get the position, but the company does not explain their decision.

It can be difficult to determine whether subtle discrimination is indeed a factor in such situations. They may therefore require investigation and analysis that examines the context, including the presence of comparative evidence contrasting how others were treated, or evidence that a pattern of behaviour exists. An organization should be able to provide a non-discriminatory reason for failing to hire a person.

5.1 Harassment

Harassment because of sexual orientation is not explicitly covered by the Code. However, in Crozier,[35] an Ontario human rights tribunal addressed harassment relating to sexual orientation, based on the notion that harassing behaviour can become a condition of the person’s employment and therefore would be a violation of the Code for the purposes of making a human rights claim. The tribunal, applying principles articulated by the Supreme Court of Canada in Janzen,[36] stated that harassment because of sexual orientation is also a form of discrimination based on sexual orientation and is a violation of the Code.

Harassment is defined in section 10(1) of the Code as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” The reference to comment or conduct "that is known or ought reasonably to be known to be unwelcome" establishes both a subjective and an objective test for harassment. 

The subjective part of the test considers the harasser’s own knowledge of how his or her behaviour is being received:

  • In some situations, it should be obvious that the conduct or comments will be offensive or unwelcome.
  • Some conduct or comments relating to a person’s sexual orientation or same-sex marital status may not, on their face, be offensive. However, they may still be ”unwelcome“ from the perspective of a particular individual. If similar behaviour is repeated despite indications from the individual that it is unwelcome, there may be a violation of the Code.

The objective component of the test considers, from the point of view of a “reasonable” third party, how such behaviour would generally be received:

  • The determination of the point of view of a “reasonable” third party must take into account the perspective of the person who is harassed.[37]

It is important to note that there is no requirement that the individual object to the harassment for there to be a violation of the Code, or for a person to claim their rights under the Code. An individual who is the target of harassment may be in a vulnerable situation, and afraid of the consequences of speaking out. Employers, landlords and service providers have an obligation to maintain an environment that is free of discrimination and harassment, whether or not anyone objects.

Each situation brought to the attention of the Tribunal through a human rights claim will be assessed on its own merits. However, the following types of behaviours are examples that would in most instances be viewed as conduct or comments that "ought reasonably to be known to be unwelcome":

  • use of homophobic epithets, slurs, or jokes
  • comments ridiculing individuals because of their sexual orientation, or their same-sex partner or spouse
  • homophobic name calling, ”nicknames” or remarks
  • singling out an individual for "teasing" or jokes related to sexual orientation
  • hints being made about a person’s sexual orientation
  • circulating or posting of homophobic, derogatory or offensive signs, caricatures, graffiti, pictures or other materials.

Examples of situations that might be considered harassment include the following:

  1. A landlord says to a tenant, who is a member of the gay and lesbian community, "I don't know why you people don't go live with people like yourself, because you sure don't belong here.”
  2. Graffiti that is tolerated by a service provider, employer, or landlord who does nothing to remove it may be creating a "poisoned environment.”

5.2 Poisoned environment

The Code definition of harassment refers to more than once incident or comment or conduct. However, even a single statement or incident may be significant or substantial enough to constitute a breach of the Code by creating a “poisoned environment” for individuals because of their sexual orientation. A consequence of creating a poisoned environment is that certain individuals are subjected to terms and conditions of employment, tenancy, services, etc. that are quite different from those experienced by individuals who are not subjected to these comments or conduct. In such instances, the right to equal treatment may have been violated.
Heterosexist assumptions may lead employers, landlords, service providers and others to believe that there are no gay, lesbian or bisexual people present, and that homophobic behaviour is therefore not problematic. This is not the case. Homophobic remarks, jokes and innuendo poison the environment for individuals who are, or are perceived to be, bisexual, gay and lesbian, their friends and families, and others.
In the employment context, tribunals have held that the atmosphere of a workplace is a condition of employment just as much as hours of work or rates of pay. The notion of a poisoned environment can also apply in housing, the provision of services, contracting or membership in a vocational association.
Inappropriate comments and conduct are exclusionary and unprofessional and have a negative and disruptive effect on everyone's environment. It is the responsibility of every service provider, landlord and employer to ensure the environment is free from this sort of behaviour even if no one objects. See section

5.3 Confidentiality and Sexual Orientation

An individual’s sexual orientation and marital status are personal characteristics that may or may not be known to others. While individuals who are heterosexual may not be concerned about others knowing their sexual orientation or marital status, this may not be the case for individuals who are bisexual, gay or lesbian. Despite the protections set out in the Code and the Charter, courts have recognized that individuals and couples who identify themselves or are identified by others as gay, lesbian or bisexual have faced historical disadvantage and continue to be subjected to overt or subtle discrimination or harassment, verbal abuse and physical violence. As a result, they may wish to conceal their sexual orientation or share the information only with certain individuals.

Comments and questions about an individual’s personal or romantic life, such as questions or statements about marital status, whether they will have children, who they are dating, where they go out on weekend evenings or who they find attractive, may be inappropriate, particularly if the person has voiced or shown discomfort or avoided responding. Repeated or ongoing comments of this nature may amount to sexual harassment, or make people uncomfortable for reasons relating to other grounds under the Code. For gay, lesbian, and bisexual people, this may also amount to harassment or create a poisoned environment relating to sexual orientation. For example:

  • If they have not disclosed their sexual orientation, this behaviour pressures them to either disclose or to deny their sexual orientation. This is intrusive and may seem threatening; it may be the instigator’s way of signalling that they know or suspect the person’s sexual orientation, and that they may disclose this to others. This plays on the genuine fears of discrimination, harassment or violence that may have led the person to conceal his or her sexual orientation in the first place.
  • Lesbian, bisexual and gay people, like some other groups, have been targeted by dehumanizing stereotypes that represent them not as whole people but only in terms of sex, distorting and overemphasizing the sexual aspect of their lives.[38] This pattern of comment or question may therefore be received as a prurient interest in their sexual lives, relating to stereotypes about their sexual orientation.

Individuals and organizations responding to discrimination and harassment matters relating to sexual orientation should take into account the disadvantage that forms part of the perspective of the individual. In order to make a human rights claim based on sexual orientation, it is not necessary for the person to identify him or herself as gay, lesbian or bisexual, but to establish discriminatory or harassing treatment relating to sexual orientation. Furthermore, the needs of many lesbian, bisexual or gay people for confidentiality regarding their sexual orientation should come into play in an analysis of whether discrimination or harassment has occurred. See section 9.1 Protecting Confidentiality of Information for related information about organizational best practices.

5.4 Systemic discrimination

Discrimination may also be institutional or systemic. Policies, practices, rules or requirements, decision-making processes and organizational culture may all have discriminatory effects on individuals based on sexual orientation.

5.4.1 Organizational Culture

Organizational culture can be described as shared patterns of informal social behaviour which are the evidence of deeply held and possibly unconscious values, assumptions and behavioural norms. An organizational culture that is not inclusive can marginalize lesbian, bisexual or gay people and contribute to homophobia or heterosexism.

Examples may include informal social interactions and subjective assessments of employee skills, such as:

  • jokes or gossip about gay, lesbian and bisexual people
  • questions or comments presuming that employees have or seek (or should have or want) opposite-sex partners or spouses
  • exclusion of lesbian or gay employees from social or informational networks
  • negative employer valuation of the work, skills, or ‘fit’ of employees who are, or are perceived to be, gay or lesbian, or who do not conform to gender roles
  • employer bias toward employees who conform to a heterosexual nuclear model of family and marital status, such as in evaluation of employee dedication or reliability
  • lack of workplace training in non-discrimination, or training that excludes mention of sexual orientation.

In Practice: an employer holds regular holiday parties and picnics as “team-building” events, expecting staff to bring their families. A lesbian employee, aware of the assumption that she is heterosexual, feels uncomfortable attending or bringing her female partner. However, she is concerned that her employer will decide that she is not a “team player” if she does not attend.

Workplace culture has influenced the employee’s discomfort in this situation. She is forced to make a choice between three options, all of which are unsatisfactory to her:

  1. She may attend alone but would be misrepresenting herself as single.
  2. She may avoid the event altogether but risks being assessed as a poor “team player.”
  3. She may also attend with her partner but this would amount to publicly disclosing her sexual orientation in a workplace environment that she experiences as heterosexist.

Linking work goals or performance evaluations with social events or with employee’s non-work lives, such as expecting family involvement, may lead to exclusion or discrimination based on sexual orientation or other Code grounds. Assessment of worker skills should be based on employee performance and should avoid subjective evaluations that may relate to sexual orientation and other Code grounds.

An organization may have genuinely good intentions and wish to foster a positive social environment by hosting or organizing social events including those involving family. However, it must be clear that any such events are optional and organizations must take care to avoid creating expectations or requirements that may have exclusionary or discriminatory effects. Prudent employers and organizations may encourage inclusive organizational culture by ensuring that anti-discrimination policies and training are in place. They may thereby be able to prevent exclusion or discrimination and will be better prepared to address any problems that do arise.

5.4.2 Policies, Procedures and Rules

Policies, procedures and rules may be non-discriminatory on their face, yet may be applied in a discriminatory way so that they disproportionately affect members of gay, bisexual or lesbian communities.

Example: A bookstore which serves a largely lesbian, gay, bisexual and transgender clientele finds that Customs officials regularly delay, confiscate, destroy, damage, prohibit or misclassify as “obscene” materials which they import from their main suppliers in the U.S., while the same or comparable materials imported by other businesses are not similarly treated. The Supreme Court of Canada found that Canada Customs had discriminated against the store on the basis of sexual orientation, engaged in “systemic targeting” of the bookstore’s imports, stigmatized and harassed the appellants and had violated their legitimate sense of self-worth and dignity. [39]

Rules, policies, procedures, requirements, eligibility criteria or qualifications may appear neutral and be equally applied but may nonetheless be discriminatory. This is because they may have an adverse impact based on sexual orientation, due to an exclusionary assumption or other bias.

Example: A “birth registration” form contains spaces for “mother” and “father.” Lesbians whose female partners have conceived through donor insemination are not allowed to list themselves on the form and are told that they are required to go through the process of second-parent adoption. This results in increased costs, delay, inconvenience and ongoing difficulties in proving the relationship because of the special position of birth registration in documenting the child’s familial relationships. This has been found to be discriminatory and to amount to denial of their status as parents.[40]

5.4.3 Reasonable and bona fide requirements

An organization or institution may seek to justify or maintain a discriminatory policy, practice or decision-making process by demonstrating that it is reasonable and bona fide in the circumstances. While such claims are not uncommon, the standard for establishing that a requirement is bona fide is high and there are limited criteria through which it can be met. It is therefore rare for a discriminatory requirement to be found to be bona fide.

The Supreme Court of Canada has set out a three-step test for determining whether a discriminatory standard, factor, requirement or rule can be justified as bona fide.. The organization or institution must establish on a balance of probabilities that the standard, factor, requirement or rule:

  1. was adopted for a purpose or goal that is rationally connected to the function being performed
  2. was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal and
  3. is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.[41]

In Practice: In the previous example involving birth registration, the agency argued that the form must list the child’s biological parents. However, there was a regulation that allowed male partners of women who have just given birth to list themselves as the father of the child, without any requirement that they establish biological parentage. In fact, men whose partners had conceived through donor insemination (“DI”) were protected from having to disclose this fact. The agency’s justification was found not to be bona fide.[42]

The ultimate issue is whether the person who seeks to justify the discriminatory standard, factor, requirement or rule has shown that accommodation has been incorporated into the standard up to the point of undue hardship.

In this analysis, the procedure used to assess and achieve accommodation is as important as the substantive content of accommodation. The following non-exhaustive factors should be considered in the course of the analysis:

  • whether the person responsible for accommodation investigated alternative approaches that do not have a discriminatory effect
  • reasons why viable alternatives were not implemented
  • ability to have differing standards that reflect group or individual differences and capabilities
  • whether persons responsible for accommodation can meet their legitimate objectives in a less discriminatory manner
  • whether the standard is properly designed to ensure the desired qualification is met without placing undue burden on those to whom it applies and
  • whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.[43]

In Practice: The agency responsible for birth registration could have accommodated those negatively affected by changing the form to make it more inclusive. They could have accommodated by allowing the same-sex spouse of the birth mother to list herself on the form, whether under “father” or, crossing out that term, as “co-parent,” as the complainants attempted to do. Instead, the agency discriminated on the basis of a heterosexist view of family and spousal relationships reinforced by a standardized form that did not account for the realities of gay and lesbian-headed families.[44]

5.5 Discrimination because of association

Persons who are subject to discrimination because of their association with a person protected under the Code may make a human rights claim based on s.12 which protects against "discrimination because of association.”

Example: A female tenant of an apartment makes a request for maintenance on her unit. The superintendent denies her request, making negative comments about the tenant’s close friend who is an African-Canadian lesbian.

Example: Several employees of a retail store wear a pin in support of an organization for parents and friends of lesbian, gay, bisexual and transgender people. Despite the fact that other employees are permitted to wear buttons, pins or other jewellery identifying their affiliation with volunteer and interest groups, the employer insists that employees must remove this particular pin. The employer confiscates some of the pins, stating that they violate the dress code, and threatens to sanction employees who wear them.

Although these individuals were not subjected to discrimination because of their own sexual orientation, they were subjected to discrimination because of their relationship or association with someone identified by a prohibited ground of discrimination.

5.6 Discrimination because of perceived sexual orientation

The right to equal treatment means that if you have been discriminated against because of bias about sexual orientation you are entitled to the Code’s protection. A person does not actually have to be of a particular sexual orientation but can make a human rights claim as long as it can be shown that there was unequal treatment based on perceived sexual orientation.

Example: Two women who are not lesbians are dancing together in a bar when the owner interrupts them and asks them to leave. This happens after one of the women overheard the owner say, “I don’t want people thinking this is a lesbian bar.” Even though the women are not lesbians, they can file a claim with the Tribunal because they believe they were subjected to unequal treatment because of perceived sexual orientation.

Example: A male student is subjected to years of homophobic harassment and bullying in school. The student is not gay, and his harassers deny believing that he is gay. However, he is still found to be entitled to protections based on sexual orientation.

Even if the perpetrators deny that they actually believe a person to be gay, lesbian or bisexual that person may make a human rights claim if she or he is subject to discrimination or harassment that is homophobic in nature. This is because the treatment is based in prejudice about sexual orientation and it is the effect of the discrimination or harassment, rather than the intent or belief of the harassers, that is the basis for determining that discrimination has occurred.[45] In this case, a “reasonable person” would also likely conclude that the perpetrators perceived the person to be gay, lesbian or bisexual, based on the nature of the harassment.

5.7 Comments or conduct need not be explicit

Comments or conduct do not need to be explicit to infringe a person’s right to equal treatment without discrimination or harassment. Where a person is singled out and treated differently because of sexual orientation, even where the differential treatment does not include explicit reference to sexual orientation or same-sex partnership status, there may still be a violation of the Code.

Example: In a workplace, the only gay employee is repeatedly made the subject of practical jokes and is ridiculed by his co-workers for no apparent reason. The workplace has a history of homophobic attitudes. It may be inferred from the particular circumstances that the treatment is based on sexual orientation although the practical jokes or ridicule may not have contained any direct reference to the employee’s sexual orientation.

6. Relationships between sexual orientation and other Code grounds:

Discrimination based on sexual orientation may involve any other ground of discrimination listed in the Code. The grounds of sex, marital status and family status in particular can have unique relationships to the ground of sexual orientation.

6.1 Sex

Discrimination and harassment on the ground of sexual orientation can involve the ground of sex in a number of ways. Discrimination against people because they are gay, lesbian or bisexual may take the form of sexual harassment.[46]

Example: After she had worked for about a year in her job, a woman’s male co-worker asked her about her sexual orientation. When she indicated that she liked women, he began harassing her, using homophobic epithets and directing sexually explicit questions, comments and gestures to her. He also made negative, stereotypical comments to her female colleagues about her sexual orientation and practices. [47]

Even if the harassment does not explicitly mention or refer to the person’s sexual orientation, if he or she is targeted because of actual or perceived sexual orientation the claim may cite the ground of sexual orientation.

Gender expression and gender identity are both also addressed in human rights claims at the Tribunal under the ground of sex. In cases of discrimination or harassment, these grounds are sometimes confused with or serve as a proxy for sexual orientation. For example:

  • a co-worker assumes that a transgender person is gay and makes homophobic comments in the workplace
  • a woman does not dress or wear her hair in a “feminine” style. Her manager makes jokes about sexual orientation and gender identity in her presence and to coworkers
  • a landlord believes that a male tenant is gay because his clothing and manner of expression do not seem “masculine.” He calls the tenant homophobic names, and refuses to do repairs and maintenance in the apartment.

6.2 Marital Status and Family Status

Marital status is defined under section 10(1) of the Code as “the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage.” This definition is inclusive of same-sex couples whether married or “common-law.” Therefore, the separate ground of “same-sex partnership” has been removed. Claims brought by persons regarding discrimination on the basis of a conjugal relationship with a person of the same sex will be addressed as discrimination based on the grounds of sexual orientation and marital status in addition to any other grounds that may be involved.

Family status is a protected ground in the Code and is defined under section 10(1) as the “status of being in a parent and child relationship.” Lesbian, gay and bisexual people may have children through previous heterosexual unions, same-sex relationships with biological parents, adoption or assistive reproductive technologies. Homophobic stereotypes and lack of legal recognition have both contributed to discrimination faced by these individuals and families. Gay, bisexual and lesbian people may also form important dependency and caregiving relationships that are not currently recognized under this ground of the Code or other provincial and federal legislation.

6.3 Intersectionality and overlapping grounds

Persons who are bisexual, gay, or lesbian may experience various forms of discrimination, depending on what other characteristics form part of their personal identity or status in a society. A combination of Code-related grounds may compound the person’s experience of discrimination.

Individuals may experience discrimination or harassment based on one ground in certain contexts and on another ground in other contexts. For example, a gay man accessing services geared toward persons of his race, ancestry, ethnic origin or place of origin may be subjected to comment by a service worker that gay people “don’t belong in our culture.” At another time, he may experience discrimination based on race or culture-related grounds in his volunteer work with a gay community organization or he may experience discrimination based on all of these grounds at once.

A human rights claim involving sexual orientation may involve any other ground under the Code, and a person may experience discrimination based on several characteristics or aspects of their identity at the same time. For example, a lesbian with a disability may be seen as a lesbian, a woman, or a person with a disability and thus be exposed to discrimination or harassment based on her sexual orientation, sex, or disability, or on a combination of these (and other) grounds. Discrimination or harassment relating to one ground may have a greater negative impact on persons due to the vulnerability they experience stemming from the other grounds.

Different aspects of a person’s identity may intersect in such a way that the person may be exposed to stereotyping and discrimination that is unique and distinct to that combination of grounds. For example, a gay man may be seen as a man and as a gay or homosexual person generally. However, he may be exposed to an intersectional form of discrimination on the basis of being identified as a “gay man,” because of unique stereotypes about gay men that are distinct from those about lesbian or bisexual people, or about men in general.

Example: When a gay man working at a family services agency took sick leave rumours circulated in his workplace that he had AIDS. Later, he was falsely rumoured to be sexually abusing his adolescent male foster child. He complained to the employer about the rumours but was terminated for reasons relating to the unfounded allegations. The Board found that the man had been subjected to harassment, a poisoned work environment, discrimination and reprisal.[48]

In this case, the individual suffered discrimination based on specific stereotypes about sex, sexual orientation, family status and disability.

7. Organizational Responsibility

The ultimate responsibility for a healthy and inclusive environment rests with employers, landlords, unions, vocational and professional organizations, service providers and other organizations and institutions covered by the Code. There is an obligation to ensure that environments are free from discrimination and harassment. It is not acceptable from a human rights perspective to choose to remain unaware of the potential existence of discrimination or harassment or to ignore or fail to act to address human rights matters whether or not a claim has been made.

An organization violates the Code where it directly or indirectly, intentionally or unintentionally infringes the Code, or where it does not directly infringe the Code but rather authorizes, condones, adopts or ratifies behaviour that is contrary to the Code. Organizations should ensure that rules, policies, procedures, decision-making processes and organizational culture are non-discriminatory on their face, and do not have a discriminatory impact.

In addition, there is a human rights duty not to condone or further a discriminatory act that has already occurred. To do so would extend or continue the life of the initial discriminatory act. The obligation extends to those who, while not the main actors, are drawn into a discriminatory situation nevertheless, through contractual relations or otherwise.[49] An organization should also not punish a person because of how they responded to harassment:

Example: A woman’s co-worker verbally harassed her because of sex and sexual orientation. After a couple of months, she complained to her manager, who told them to stay away from each other. However, the co-worker continued to make negative comments to other staff about her. When she reported this again to her manager, he told her she should figure out how to resolve the problem. When he found out that she had complained to the police, the employer terminated her. The court found the employer liable for the offensive conduct, his failure to respond appropriately to her complaints, and for the role her police complaint played in his decision to terminate her. [50]

Unions, vocational, and professional organizations are responsible for ensuring that they are not engaging in, condoning, or contributing to discrimination or harassment. They may be liable for discriminatory policies or actions to the same extent as an employer and share the same obligation to take measures to address harassment or a poisoned environment.

Human rights decisions frequently find organizations liable, and assess damages based on an organization’s failure to respond appropriately to address discrimination and harassment. An organization may respond to complaints about individual instances of discrimination or harassment, but they may still be found to have failed to respond appropriately if the problem is not resolved. There may be a poisoned environment, an organizational culture that excludes or marginalizes persons based on sexual orientation, or an ongoing pattern of homophobic comments or incidents despite sanction of individual harassers. In these cases the organization should take further steps such as training and education, in order to more appropriately address the problem.

The following factors have been suggested as considerations for determining whether an organization met its responsibilities to respond to a human rights complaint:

  • procedures in place at the time to deal with discrimination and harassment
  • the promptness of the institutional response to the complaint
  • the seriousness with which the complaint was treated
  • resources made available to deal with the complaint
  • whether the organization provided a healthy work environment for the person who complained and
  • the degree to which the action taken was communicated to the person who complained.[51]

For more information, see also section 9. Preventing and responding to homophobia and discrimination based on sexual orientation.

7.1 Vicarious liability

Under section 46.3 (1) of the Code, a corporation, trade union or occupational association, unincorporated association or employer’s organization will be held responsible for discrimination, including acts or omissions committed by employees or agents in the course of their employment. This is known as vicarious liability. It applies not only to human rights violations in the workplace, but also in housing accommodation, goods, services and facilities, contracting, and membership in unions and vocational associations.

It is the OHRC’s position that vicarious liability automatically attributes responsibility for discrimination to an organization for the acts of its employees or agents done in the normal course, whether or not it had any knowledge of, participation in, or control over these actions.

Vicarious liability does not apply to breaches of the sections of the Code dealing with harassment. However, in these cases the “organic theory of corporate liability” may apply. In addition, since the existence of a poisoned environment is a form of discrimination, it is the OHRC’s position that when harassment amounts to or results in a poisoned environment, vicarious liability under section 46.3 (1) of the Code is restored.

7.2 The "organic theory" of corporate responsibility

An organization may be liable for acts of harassment carried out by its employees if it can be proven that it was aware of the harassment or the harasser is shown to be part of the management or "directing mind" of the organization. In such cases, the decisions, acts, or omissions of the employee will engage the liability of the organization where:

  • The employee who is part of the “directing mind” engages in harassment or inappropriate behaviour that is contrary to the Code; or
  • The employee who is part of the “directing mind” does not respond adequately to harassment or inappropriate behaviour of which he or she is aware, or ought reasonably to be aware.

Example: An employee informed his manager that he was being subjected to discriminatory rumours in the workplace related to his sexual orientation. The manager failed to take appropriate steps to investigate the rumours or to advise senior management, and subsequently filed a misleading report leading to the employee’s termination. A human rights tribunal found the organization vicariously liable for the discriminatory gossip, the manager’s failure to investigate and address it, and the manager's misleading report. The tribunal also held the organization to be directly liable for the failure to deal with the discriminatory rumours and for the manager’s misleading report, on the basis of the “organic theory” of corporate liability.[52]

Generally speaking, managers and central decision-makers in an organization are part of the “directing mind.” Employees with only supervisory authority may also be part of the “directing mind” if they function or are seen to function, as representatives of the organization. Even non-supervisors may be considered to be part of the “directing mind” if they have de facto supervisory authority or have significant responsibility for the guidance of employees. For example, a member of the bargaining unit who is a lead hand may be considered to be part of the “directing mind” of an organization.

8. Employment, services, and housing

Employment, services, and housing are the social areas most commonly cited in claims of discrimination based on sexual orientation. As in all social areas, employers, service providers and landlords should be aware of their obligations under the Code and understand their corporate responsibility as described in section 7. Organizational Responsibility. There are many steps that prudent organizations can take to prevent and appropriately respond to complaints. For further guidance, see section 9. Preventing and responding to homophobia and discrimination based on sexual orientation.

8.1 Employment

Section 5(1) of the Code provides that every person has a right to equal treatment in employment without discrimination because of sexual orientation and marital status. The majority of claims of discrimination based on sexual orientation relate to employment. Denying or restricting employment opportunities in hiring, training, promotion, transfers, etc. because of sexual orientation or same-sex marital status is a violation of the Code.

Example: An employee discloses that he is gay to his manager. The manager subsequently tells the employee that he will no longer qualify for promotions, postings, or further career training.[53]

Example: A woman works for a company on a temporary contract in the same department as her same-sex partner. An “out” lesbian, she has been subject to homophobic comment from management. Her supervisor offers her a full-time position, but stipulates that to protect company security, her partner will be transferred to another department in the company. He claims that the same requirement would be imposed were she heterosexual. She questions the company’s consistency in applying this rule to heterosexual workers and suggests alternatives, but the company terminates her without further discussion. [54]

In this case, a human rights tribunal found that the company had discriminated against the employee and specifically, that employer’s discomfort with her sexual orientation and her openness about it was a factor in her termination.

Individuals with same-sex spouses, as defined under “marital status” in section 10(1) of the Code are entitled to the same employment-related benefits as individuals with opposite-sex spouses. This may include employee superannuation or pension plans or funds, or a contract of group health insurance between an insurer and an employer, even if it complies with other relevant legislation and regulations.

Employers must ensure that they are not discriminating in extending opportunities such as in hiring, promoting, providing training or mentoring, or in other decision-making, including termination or discipline.

Example: When a gay man’s co-worker finds out that he is HIV-positive, she complains to management, who terminates him. When he files a human rights claim, the employer claims not to have known his HIV status but states that it would present a health and safety risk. They allege that he was terminated for inappropriate sexualised comments in the workplace. However, there was no evidence that they had investigated or substantiated these allegations prior to the termination and they did not establish that being HIV-negative was a bona fide requirement for the position.

Employers should be able to provide non-discriminatory reasons for decisions and assessments affecting employees and ensure that they are not causing or condoning discrimination or harassment in the workplace. See section 9. Preventing and responding to homophobia and discrimination based on sexual orientation, and the OHRC’s publication Human Rights at Work for more information about preventing and responding to human rights claims in employment. [55]

8.2 Services

Section 1 of the Code provides that every person has a right to equal treatment with respect to services, goods, and facilities, without discrimination because of sexual orientation.

Example: A municipality that provides the service of issuing proclamations must do so in a non-discriminatory manner. Refusal to proclaim “Gay and Lesbian Pride” events has been found to be discriminatory in several cases. [56] In one instance, the event was proclaimed, but the proclamation was altered and the word “Pride” eliminated. This was also found to be discriminatory.[57]

Example: A representative of a gay community organization went to a printing company to have some of its business materials printed. The owner of the company, upon discovering that the job was for a gay organization, refused to print the materials citing his religious beliefs on sexual orientation.[58]

Example: An all-male team of police officers entered a “women only” night at a bathhouse for investigation of alleged liquor license infractions. The committee organizing the event filed a human rights claim alleging discrimination of the basis of sex and sexual orientation. They alleged that despite having advance knowledge of the nature of the event, the police service scheduled male officers to investigate, although female officers were available. They also alleged that the officers remained much longer than the investigation required, observing numerous women in various states of undress. The negotiated settlement included a comprehensive training program for all officers involving consultation with the committee and the community, and clear objectives and reporting requirements.[59]

Service providers must respond appropriately to concerns relating to discrimination and harassment. They should investigate individual incidents and sanction the persons responsible, but may also need to take other measures to effectively address the problem.

Example: A student was subjected to years of homophobic harassment by other students in his secondary school. Although the school board reacted to specific instances of harassment by sanctioning the individual harassers, it did not take further measures to address the ongoing pattern of harassment. The school board was found responsible for discrimination, having failed to provide an educational environment free from discriminatory harassment. [60]

When it was responsible for dealing with human rights complaints under its old mandate, the OHRC addressed similar situations in Ontario, mediating settlements with broad systemic remedies designed to curb further discrimination and harassment on the grounds of sexual orientation.[61]

8.3 Accommodation (housing)

Section 2(1) of the Code provides that every person has a right to equal treatment with respect to the occupancy of accommodation (housing) without discrimination because of sexual orientation.

Landlords must ensure that they are not denying housing to individuals based on sexual orientation or other Code grounds. They must likewise ensure that their treatment of current tenants and decisions about termination of tenancy are non-discriminatory and not influenced by subjective judgements relating to sexual orientation.

Example: Two gay students respond to an advertisement for a house that is for rent and arrange to view the house and meet with the owner. A few days later, they contact the owner and advise him that they wish to rent the house. At their second meeting with the owner of the house he asks them if they are gay and proceeds to tell them that he does not rent to gays.[62]

Landlords must also address any discrimination or harassment relating to sexual orientation that may arise within their rental housing environment, whether between tenants or involving agents of the landlord, or others who are part of the housing environment, such as contracted maintenance workers.

Example: A tenant complains that the superintendent and another tenant are verbally harassing him and making false accusations against him because of his sexual orientation and religion.

Example: A landlord discovers homophobic and racist graffiti on a wall in a public area of her apartment building.

Example: A woman complains to a landlord that the building manager stopped doing maintenance in her unit and responding to her phone calls after her same-sex partner moved in.

If landlords become aware of discrimination or harassment, either through a complaint or other means, they must respond appropriately. Landlords who fail to take steps to address a poisoned environment or an internal complaint of discrimination or harassment may be found liable.

9. Preventing and responding to homophobia and discrimination based on sexual orientation

Organizations and workplaces can take a number of steps to prevent and appropriately address human rights complaints. The following are particularly important elements of an organization’s strategy to address human rights issues as they may arise with respect to sexual orientation:

  • protection of confidentiality of information
  • barrier review
  • development and promotion of anti-harassment and anti-discrimination policies that address homophobia
  • a complaint resolution procedure

9.1 Protecting confidentiality of information

Confidentiality can be particularly important for bisexual, lesbian, and gay individuals. An employer or service provider who legitimately requires and collects personal information that either directly or indirectly identifies an individual’s sexual orientation must ensure the maximum degree of privacy and confidentiality of the information. This applies in all situations and circumstances including employment records and files, insurance company records, medical information, etc. The information might be required to enable an employee or individual to claim or register for benefits, to apply for an apartment, or for other purposes.

Confidential information that might be collected could include:

  • identification of next of kin
  • identification of beneficiary for insurance purposes and
  • a claim for benefits for a same-sex spouse.

All information should remain exclusively with designated personnel (such as the human resources person) in a secure filing system in order to protect the individual’s confidentiality. An employer or service provider who fails to properly safeguard personal information about an individual’s sexual orientation may infringe the Code, and a human rights claim can be made where this results in a person being subjected to discrimination and/or harassment because of their sexual orientation or same-sex partnership status.

9.2 Barrier review and removal

Organizations may have rules, criteria or internal policies, practices and decision-making processes that perpetuate systemic discrimination and create barriers for gay, lesbian, and bisexual people, as well as individuals identified by other Code grounds.[63] In general, informal processes are much more likely to lead to subconsciously biased decision-making, and may allow biased decisions and behaviours (whether intentional or not) to go unnoticed and uncorrected by the organization or company.

Some examples include:[64]

  1. Barrier: Relying on personal networks, social relationships, supervisor discretion or word-of-mouth referrals to recruit for vacancies or to extend opportunities such as training or career advancement. These types of informal processes often exclude those who do note share the same characteristics as the recruiter, management, or other organization members.
    Best practices: Formal announcements or postings should list requirements or criteria related to the essential requirements for the position or opportunity, and be widely distributed so that they can readily come to the attention of a diverse applicant pool. Information about internal opportunities should be shared with all employees or organizational members.
     
  2. Barrier: Staffing or membership decisions based on informal processes. For example, conducting an interview by chatting with the applicant to see if he or she shares similar interests and will “fit” into the organizational culture may present a barrier for persons who are or appear different than the dominant norm in the organization.
    Best practices: Formal interviews or reviews conducted by multiple-person panels using preset questions and scoring the answers against a pre-determined answer guide, help to eliminate bias. Criteria and questions must relate to ability to perform the essential duties of the job or meet objective, non-discriminatory organizational requirements rather than focusing on subjective, unclear considerations such as whether the person exhibits “confidence” or is “suitable.”
     
  3. Barrier: Undefined policies for sanction, discipline or termination, or uneven application of such policies. These are a common basis for human rights claims.
    Best practices: Decisions to sanction an individual should be based in clearly defined, objective criteria, and related to identified job or organizational requirements. Well-documented, evenly applied progressive discipline, sanction, or performance management practices help organizations prevent or respond to human rights claims. Information about policies and criteria should be shared with all persons to whom they are applicable.

In hiring, extending opportunities, assessing performance, and in other decision-making, employers, landlords, service providers and other organizations should establish non-discriminatory criteria and processes and follow them consistently. They must ensure that they are not treating individuals differently because of factors that may relate to a ground under the Code, and that their processes do not have a discriminatory effect, even if unintentional. Assessments should be made based on the requirements of the job, service, or organization, not on external factors.

If a human rights claim is made to the Tribunal , organizations, landlords, and employers may be asked to provide evidence of how a decision was made, and that it was not based even in part, on discriminatory criteria.

9.3 Anti-harassment and anti-discrimination policies

Organizations should be proactive in creating fair and equitable environments. Anti-discrimination and anti-harassment policies are valuable tools in promoting equity and diversity within an organization. Adoption and implementation of these policies can also help to limit potential harm, and reduce the organization’s liability in the event of a human rights claim. These policies should explicitly address discrimination based on sexual orientation.

These elements should be developed in co-operation with workplace or organization partners where they exist, such as unions. Unions are important partners in the creation of a non-discriminatory workplace. As part of a "best practices" initiative, they should work with employers in the development of internal policies and procedures. Unions should also take a proactive role in human rights training and education for their members specifically, and for the entire workplace in general.

9.3.1 Developing anti-discrimination and anti-harassment policies

The following are suggested contents for an organization’s anti-discrimination and anti-harassment policy:

  • A statement setting out the organization’s commitment to a fair and equitable environment free of discrimination and harassment, clarifying that discrimination and harassment will not be tolerated by the organization.
  • A statement of rights and obligations including:
    • The rights of organization members, employees, or other associated personnel
    • rights of clients, tenants, or customers
    • organizational, employer, and/or management obligations
    • union or other workplace partner obligations
    • an explanation of corporate liability for the behaviour of officers, managers, employees, etc. and
    • a statement indicating that no reprisals are permitted or will be taken against an individual making a complaint
  • A list of the prohibited grounds of discrimination in the Code.
  • The Code definitions of "harassment" and "sexual harassment.”
  • An explanation of the concept of a "poisoned environment" as a violation of the Code.
  • Description/examples of unacceptable behaviour, such as:
    • refusal to hire, promote, or provide service or accommodation based on a ground listed in the Code
    • examples of harassment based on a ground listed in the Code and
    • examples of what would constitute discrimination or harassment based on sexual orientation, sex, marital status, etc.
  • How internal complaints will be handled, including:
    • to whom is the complaint made
    • confidentiality and
    • length of time for complaint to be investigated
  • Disciplinary measures that will be applied if a complaint of harassment or discrimination is proven
  • Remedies that will be available if the complaint of harassment or discrimination is proven such as:
    • an oral or written apology from the harasser/person who discriminated and the organization or company
    • recovery of losses, such as wages, benefits, promotion or services that were denied and/or
    • compensation for injury to dignity
  • A statement reinforcing the right of individuals to make a human rights claim at the Tribunal at any time during the internal process and
  • An explanation of the 1 year time limit ( in most cases) to file a claim under the Code.
9.3.2 Promoting anti-discrimination and anti-harassment policies

All employees or organization members should be aware of internal policies and any procedures in place for resolving human rights matters. This can be done by:

  • distributing policies to all employees or organization members
  • providing an overview and copies of the policies in any orientation process for new employees, management or members
  • training the management team on the contents of the policies
  • posting information about the policies where staff and/or clients can see it and
  • where a problem has been identified, providing ongoing education on human rights issues.

In an organization that does not provide training in anti-discrimination and human rights managers may be unaware of what constitutes discrimination or harassment and how barriers operate to exclude people. Ongoing training in human rights and anti-discrimination, including anti-homophobia, should be an integral part of training for all employees and particularly for those who act in a supervisory capacity. It should be made clear that human rights are part of the organization’s culture and goals and that the training is not simply “window dressing” to comply with human rights laws.

For more information see the OHRC documents, Human Rights at Work, and Guidelines on Developing Human Rights Policies and Procedures.[65]


[31]Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 174.
[32]Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [hereinafter “Law”].
[33]Waterman v. National Life Assurance Co. of Canada (No. 2) (1993), 18 C.H.R.R. D/176 (Ont. Bd. Inq.).
[34]Berry v. Manor Inn (1980) 1 C.H.R.R. D/152.
[35]Crozier v. Asseltine (1994), 22 C.H.R.R. D/244 at para. 9 (Ont. Bd. Inq.).
[36]Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252.
[37]Dhanjal v. Air Canada (1996), 28 C.H.R.R. D/367 (C.H.R.T.).
[38]Schnell v. Machiavelli and Associates Emprize Inc (No. 2) (2002), 43 C.H.R.R. D/453 at paras. 59-63 (C.H.R.T.).
[39]Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120 at para. 123.
[40]Gill v. British Columbia (Ministry of Health) (No. 1) (2001), 40 C.H.R.R. D/321(BCHRT).
[41]British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3.
[42]Gill v. British Columbia (Ministry of Health) (No. 1) (2001), 40 C.H.R.R. D/321(BCHRT).
[43]British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3.
[44]Gill v. British Columbia (Ministry of Health) (No. 1) (2001), 40 C.H.R.R. D/321, 2001 (BCHRT).
[45]North Vancouver School District No. 44 v. Jubran (2005), 39 B.C.L.R. (4th) 153 (B.C.C.A.); Ontario Human Rights Commission v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536.
[46] It is important to note that sexual harassment and inappropriate gender-related comments or conduct are prohibited regardless of the gender or sexual orientation of the parties involved. For more information, see the OHRC ’s Policy on Sexual Harassment and Inappropriate Gender-Related Comments and Conduct.
[47]Baczkowski v. Suffesick (2000), 43 C.H.R.R. D/240 (Y.T. Bd. Adj.).
[48]Moffat v. Kinark Child and Family Services (1998), 35 C.H.R.R. D/205 (Ont. Bd. of Inq.).
[49]Payne v. Otsuka Pharmaceutical Co. (No. 3) (2002), 44 C.H.R.R. D/203 (Ont. Bd. Inq.) at para. 63. The nature of when a third party or collateral person would be drawn into the chain of discrimination is fact specific. However, general principles can be determined. The key is the control or power that the collateral or indirect respondent had over the complainant and the principal respondent. The greater the control or power over the situation and the parties, the greater the legal obligation not to condone or further the discriminatory action. The power or control is important because it implies an ability to correct the situation or do something to ameliorate the conditions.
[50]Baczkowski v. Suffesick (2000), 43 C.H.R.R. D/240 (Y.T. Bd. Adj.)
[51]Wall v. University of Waterloo (1995), 27 C.H.R.R. D/44 (Ont. Bd. Inq.). These factors assist in assessing the reasonableness of an organization’s response to harassment. A reasonable response by the organization will not affect its liability but will be considered in determining the appropriate remedy. In other words, an employer that has reasonably responded to harassment is not absolved of liability but may face a reduction in the damages that flow from the harassment.
[52]Moffat v. Kinark Child and Family Services (1998), 35 C.H.R.R. D/205 (Ont. Bd. of Inq.).
[53] Haig v. Canada (1991), 5 O.R. (3d) 245 (Gen. Div.).
[54] Waterman v. National Life Assurance Co. of Canada (No. 2) (1993), 18 C.H.R.R. D/176 (Ont. Bd. Inq.).
[55] Human Resources Professionals of Ontario & Ontario Human Rights Commission, Human Rights at Work (Toronto: Government of Ontario, 2004).
[56] Hudler v. London (City) (1997), 31 C.H.H.R. D/500 (Ont. Bd. Inq), Hill v. Woodside (1998), 33 C.H.R.R. D/349 (N.B. Bd. Inq.), Oliver v. Hamilton (City) (1994), 24 C.H.H.R. D/293 (Ont. Bd. Inq.), Rainbow Committee of Terrace v. Terrace (City) (2002), 43 C.H.R.R. D/413 (BCHRT).
[57] Hughson v. Kelowna (City) (2000), 37 C.H.R.R. D/122 (BCHRT).
[58] Brockie v. Brillinger (No. 2) (2002), 222 D.L.R. (4th) 174 (Ont. Sup. Ct. Div. Ct.).
[59] Ontario Human Rights Commission, Annual Report 2004-2005, p. 57
[60] North Vancouver School District No. 44 v. Jubran (2005), 39 B.C.L.R. (4th) 153 (B.C.C.A.). The Supreme Court of Canada denied the school board’s application for leave to appeal (North Vancouver School District No. 44 v. Jubran, [2005] S.C.C.A. No. 260).
[61] For example, the Lakehead District School Board agreed to a number of measures, including adopting and promoting an equity statement, developing a document on prevention of homophobic harassment, drafting a diversity plan and providing training and education for staff and students on understanding sexual diversity issues (OHRC News Release, “Commission mediates settlement with school board in sexual orientation complaint” (8 September, 2005)).
[62] Quebec c. Martin (1997), 33 C.H.R.R. D/487 (Trib. Qué.).
[63] Physical and technological barriers should also be identified and removed, to eliminate discrimination and increase access for older persons and persons with disabilities.
[64] For more information see the OHRC’s Human Rights at Work, 3rd ed. (Toronto: Carswell Thompson 2008). The Appendix to the OHRC ’s Policy and Guidelines on Racism and Racial Discrimination, also provides numerous examples of systemic barriers and best practices in a workplace setting.
[65] Human Rights At Work, 3rd ed. ibid.; and OHRC’s Guidelines on Developing Human Rights Policies and Procedures (2008): both are available on the OHRC website, at www.ohrc.on.ca.