The Ontario Human Rights Code
The Ontario Human Rights Code (the Code) is the law that provides for equal rights and opportunities, and freedom from discrimination. The Code recognizes the dignity and worth of every person in Ontario. It applies to the social areas of employment, housing, goods, facilities and services, contracts, and membership in unions, trade or professional associations.
People are protected from discrimination and harassment based on “disability.” People with disabilities have the right to be free from discrimination when they receive goods or services, or use facilities. “Services” is a broad category and can include privately or publicly owned or operated services. Some examples are:
- stores, restaurants and bars
- hospitals and health services
- schools, universities and colleges
- public places, amenities and utilities such as recreation centres, public washrooms, malls and parks
- services and programs provided by municipal and provincial governments, including social assistance and other benefits, and public transit
- services provided by insurance companies.
People with disabilities are a diverse group, and experience disability, impairment and societal barriers in many different ways. Disabilities are often “invisible” and episodic, with people sometimes experiencing periods of wellness and periods of disability. All people with disabilities have the same rights to equal opportunities under the Code, whether their disabilities are visible or not.
“Disability” is to be interpreted broadly and includes past, present and perceived conditions.
Discrimination against people with disabilities is often linked to “ableism” (attitudes in society that devalue and limit the potential of people with disabilities), prejudicial attitudes, negative stereotyping, and stigma.
Discrimination in services may happen when a person experiences negative treatment or impact because of their disability. Discrimination does not have to be intentional. And, a person’s disability needs to be only one factor in the treatment they received for discrimination to have taken place.
People with disabilities who also identify with other Code grounds (such as sex, race or age) may be distinctly disadvantaged when they try to access a service. Stereotypes may exist that are based on combinations of these identities, placing people at unique disadvantage.
Example: Women with disabilities experience unique forms of discrimination. They may be singled out as targets for sexual harassment and sexual violence due to a perception that they are more vulnerable and unable to protect themselves.
Forms of discrimination
Discrimination may take many different forms. It can happen when service providers specifically exclude people with disabilities from receiving services.
Example: A family doctor refuses to take new patients who have a disability because he believes that they have complex needs, and will take up too much of his time and attention.
Discrimination can also happen when service providers withhold benefits that are available to others, or impose extra burdens that are not imposed on others, without a legitimate reason. This discrimination is often based on negative attitudes, stereotypes and bias.
Discrimination may also happen “indirectly.” It may be carried out through another person or organization.
Example: A private school indirectly discriminates by instructing an admissions scout it has hired not to recruit students with disabilities who have costly accommodation requirements.
People associated with persons with disabilities are also protected from discrimination and harassment. This could include family, friends, or someone advocating on a person’s behalf.
Discrimination is often subtle. It may not be likely that discriminatory remarks will be made directly. Subtle forms of discrimination can usually only be detected after looking at all of the circumstances of a situation to see if a pattern of behaviour exists. Individual acts themselves may be unclear or explained away, but when viewed as part of a larger picture, may lead to an inference that discrimination based on a Code ground was a factor in the treatment a person received.
Sometimes seemingly neutral rules, standards, policies, practices or requirements have a negative effect on people who have disabilities. This may lead to “adverse effect” discrimination.
Harassment happens when someone shows a vexatious (which means distressing or annoying) pattern of doing or saying something based on a person’s disability that they know, or ought to know, is unwelcome.
Harassment could include:
- slurs, name-calling or pejorative nicknames based on disability
- graffiti, images or cartoons depicting people with disabilities in a negative light
- comments ridiculing people because of disability-related characteristics
- intrusive questioning or remarks about someone’s disability, medication, treatment or accommodation needs
- singling out a person for teasing or jokes related to disability
- inappropriately disclosing someone’s disability to people who do not need to know
- repeatedly excluding people from the social environment, or “shunning”
- circulating offensive material about people with disabilities by email, text, the Internet, etc.
A poisoned environment may be created when unwelcome comments or conduct are widespread in services and facilities, causing a hostile or oppressive atmosphere for one or more people from a Code-protected group. Although the definition of harassment refers to “repeated” actions or comments, sometimes a single remark or action can be so serious that it results in a poisoned environment.
Example: A university professor tells his class that learning disabilities do not exist – students are just lazy and watch too much television. This type of comment could be seen as poisoning the service environment for students with learning disabilities.
Systemic or institutional discrimination consists of attitudes, patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization or sector, and that create or perpetuate a position of relative disadvantage for people with disabilities. The attitudes, behaviour, policies or practices appear neutral on the surface but nevertheless have an adverse effect or exclusionary impact on people with disabilities.
It is also against the Code for a person to be punished or threatened with punishment because they try to enforce their rights under the Code (for example, by making a complaint). This is called reprisal (or “payback”).
Designing inclusively and removing barriers
People with disabilities face many kinds of barriers every day. These could be attitude, communication, physical and systemic barriers. Service providers should identify and remove barriers voluntarily instead of waiting to answer individual accommodation requests or complaints.
Example: A municipal community centre installs visual fire alarms in all of its buildings to advise people who are deaf, deafened or hard of hearing of emergency situations.
Effective inclusive design reduces the need for people to ask for individual accommodation. Service providers should use the principles of inclusive design when creating policies, programs, procedures, standards, requirements and facilities.
Negative attitudes about people with disabilities can be barriers too. Taking steps to prevent ableism will help promote respect and dignity, and help people with disabilities to fully take part in community life.
Duty to accommodate
Under the Code, service providers have a duty to accommodate the needs of people with disabilities to the point of undue hardship, to make sure they have equal opportunities, equal access and can enjoy equal benefits. The goal of accommodation is to allow people to equally benefit from and take part in services.
This means that service providers and others may need to change their rules, procedures, policies and requirements to allow for equal access and equal opportunities.
Three key principles drive the duty to accommodate:
- respect for dignity
- individualization, and
- integration and full participation.
The steps taken to assess an accommodation (the “procedural” part of the duty to accommodate) are just as important as the accommodation that is provided (the “substantive” part of the duty to accommodate).
A service user who needs a disability-related accommodation must:
- make accommodation needs known to the best of their ability, preferably in writing, so that the person responsible for accommodation can make the requested accommodation
- answer questions or provide information about relevant restrictions or limitations, including information from health care professionals
- take part in discussions about possible accommodation solutions
- co-operate with any experts whose assistance is required to manage the accommodation process or when information is needed
- meet agreed-upon performance standards and requirements once accommodation is provided
- work with the accommodation provider on an ongoing basis to manage the accommodation process.
Service providers must:
- be alert to the possibility that a person may need an accommodation even if they have not made a specific or formal request
- accept the person’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
- get expert opinion or advice where needed (but not as a routine matter)
- take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions
- keep a record of the accommodation request and action taken
- communicate regularly and effectively with the person, providing updates on the status of the accommodation and planned next steps
- maintain confidentiality
- limit requests for information to those reasonably related to the nature of the limitation or restriction, to be able to respond to the accommodation request
- consult with the person to determine the most appropriate accommodation
- implement accommodations in a timely way, to the point of undue hardship
- bear the cost of any required medical information or documentation (for example, the accommodation provider should pay for doctors’ notes, assessments, letters setting out accommodation needs, etc.)
- bear the cost of required accommodation.
Sometimes, a person with a disability cannot identify that they need accommodation. Service providers must try to help a person who is clearly unwell, or is thought to have a disability. They must ask if the person has needs related to a disability and offer assistance and accommodation.
Example: A boy in Grade 2 regularly interrupts his classmates and disrupts the teacher’s lessons. When repeated reminders do not improve the problem, the teacher considers her options. Before escalating the situation, she contacts his parents to make further inquiries. Together, they arrange for an educational assessment which reveals that the boy has autism spectrum disorder. They are then able to take steps to put the appropriate supports in place to help him succeed at school.
However, organizations are not expected to try to diagnose illness or “second-guess” a person’s disability.
Forms of accommodation
Many different accommodation methods and techniques will respond to the unique needs of people with disabilities. Many accommodations can be made easily, and at low cost. Where putting the best solution in place right away may result in “undue hardship” because of significant costs or health and safety factors, service providers still have a duty to look at and take next-best steps that would not result in undue hardship. Such steps should be taken only until better solutions can be put in place or phased in.
Depending on a person’s individual needs, examples of accommodation in services may include:
- several different ways of contacting a service including by phone, in person and by regular and electronic mail
- extra time (for example, for school exams)
- more breaks, where appropriate (for example, during a court hearing)
- flexible attendance requirements, where possible, if an absence is linked to a disability
- flexible rules if someone does not comply with a deadline, if the reason is linked to a disability
- a quiet, comfortable space to sit
- having one’s disability taken into account if it is related to behaviour that would otherwise lead to withdrawing the service or some other consequence.
When asking for accommodation, the type of information that service users may generally be expected to provide includes:
- that the person has a disability
- the limitations or needs associated with the disability
- whether the person can perform the essential requirements of being a service user, with or without accommodation
- the type of accommodation that is needed to allow the person to access the service and fulfill any essential requirements of using the service.
Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy, while still giving the service provider enough information to make the accommodation.
Generally, the service provider does not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless these clearly relate to the accommodation being sought, or the person’s needs are complex, challenging or unclear and more information is needed.
In rare situations where a person’s accommodation needs are complex, challenging or unclear, the person may be asked to co-operate by providing more information, up to and including a diagnosis. In such situations, the service provider must be able to clearly justify why the information is needed. However, wherever possible, a service provider must make genuine efforts to provide needed accommodations without requiring a person to disclose a diagnosis, or otherwise provide medical information that is not absolutely necessary.
Preventing and responding to discrimination
Under the Code, service providers must make sure their organizations are free from discriminatory or harassing behaviour. Service providers violate the Code when they directly or indirectly, intentionally or unintentionally infringe the Code, or when they authorize, condone or adopt behaviour that is contrary to the Code.
Organizations must take steps to address negative attitudes, stereotypes and stigma to make sure they do not lead to discriminatory behaviour toward people with disabilities.
Education on human rights works best alongside a strong proactive strategy to prevent and remove barriers to equal participation, and effective policies and procedures for addressing human rights issues that do arise. A complete strategy to prevent and address human rights issues should include:
- a barrier prevention, review and removal plan
- anti-harassment and anti-discrimination policies
- an education and training program
- an internal complaints procedure
- an accommodation policy and procedure.
See the OHRC’s A policy primer: Guide to developing human rights policies and procedures for more information.
For more information:
The Ontario Human Rights Commission’s Policy on ableism and discrimination based on disability.