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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.

Please visit www.ontario.ca/humanrights for more information on the human rights system in Ontario. The Human Rights System can also be accessed by telephone at: Local: (416) 326-9511 Toll Free: 1-800-387-9080 TTY (Local): (416)-326 0603 1

Opening Session (9:00 a.m. to 9:30 a.m.) - Session Objectives, Welcoming Remarks and Participant Introductions Session Overview Rémy Beauregard, Executive Director, Ontario Human Rights Commission Welcoming Remarks Keith Norton, Chief Commissioner, Ontario Human Rights Commission Yves Lafontaine, Chairman of the Board, Canadian Human Rights Foundation Participant Introductions Participants will introduce themselves

Rémy Beauregard Executive Director Ontario Human Rights Commission Pierre Bossett Director of Research & Planning Commission des droits de la personne et des droits de la jeunesse Brian Burdekin AO Special Adviser on National Institutions Office of the High Commissioner for Human Rights The Revd Fr. William G. Cliff Commissioner Ontario Human Rights Commission

“...in a world of entitlements, we need to ask ourselves what we, as Ontario citizens, should expect to receive when we become older [and] what our older citizens should be receiving now.” (Chatham-Kent Community Care Access Centre)

This Report is intended to be a broad examination of all issues that may have an impact on the dignity and worth of older adults and that may affect the enjoyment of equal rights and opportunities.

In the course of consultation, almost every individual and group highlighted the same central principles as requiring special consideration. These same principles have been identified in the work of national and international bodies.

During the consultation, the Commission heard repeatedly about ageism and its effects. Ageism can give rise to individual acts of discrimination, but can also have an impact on a wider scale by influencing policies, programs and legislation that affect broad sectors of society. For the purposes of this Report, the term ‘ageism’ refers to two types of behaviour that have a negative effect on older persons. The first involves the social construction of age, including incorrect assumptions and stereotypes about older persons.

The Commission recognizes that persons may experience disadvantage in unique ways based on the intersection of age with other aspects of their identity. During the consultations, the Commission heard about certain groups of older persons who face particular barriers arising from the intersection of age with gender, disability, sexual orientation, race, ethnicity, religion, culture and language. “Women particularly suffer because of past customs, practices and traditions.” (Canadian Pensioners Concerned)

Employment is fundamental to ensuring equal participation and equal opportunity in society. It has a direct bearing on a person’s economic status while the person is in the workforce and afterwards. Therefore, any examination of age discrimination in employment must consider the effects of practices and policies on the person while they are working as well as after they have retired. It must also consider the effect on society as a whole.

“Government does not recognize housing as a human right.” (Older Women’s Network) Throughout the consultation process, the Commission heard concerns about the need for more accessible and affordable housing and for special needs housing for seniors including those who are homeless. Submissions also highlighted that the principle of “aging in place” is central to any discussion, policy or program efforts concerning housing for older persons.

“Basic health care is a foundation in our society and differences are never justifiable. Seniors’ needs are real and they surely deserve easy access to basic health care in the same manner afforded to other groups in Ontario.” (Chatham-Kent CCAC)

Although the Code distinguishes between direct and constructive discrimination,[12] the distinction is less important than it used to be, particularly in the area of disability. This is a result of the combined impact of two factors.

Drug and alcohol testing is prima facie discriminatory under Canadian human rights law. Employers can nevertheless justify discriminatory rules if they can meet a three-part test:[18]

Testing for alcohol or drug use is a form of medical examination. Therefore, an employer considering such testing should be guided by the three-part test cited above, by the OHRC's Policy on Employment-Related Medical Information [20] and by the Ontario Court of Appeal’s decision in the Entrop case. The following are the main principles that should be borne in mind:

On-the-job testing should be administered only where a link has been established between impairment and performance of job functions, such as in the case of employees who are in safety-sensitive positions. Once again, because drug tests do not actually measure impairment, random drug testing is an unjustifiable intrusion into the rights of employees. With respect to random alcohol testing, the use of breathalysers is a minimally intrusive yet highly accurate measure of both consumption and actual impairment.

Section 17(2) Section 17(2) provides that an employee shall not be found incapable of performing the essential duties of a job unless it would cause undue hardship to accommodate the individual employee's needs, taking into account the cost of the accommodation and health and safety concerns. Sections 17(1) and 17(2) provide a two-stage test for the validity of a workplace drug and alcohol testing policy.

Employment Section 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, age, record of offenses, marital status, family status or disability. Disability Section 10 (1) “Disability” means,

Section 30 of the Ontario Human Rights Code (Code) authorizes the Ontario Human Rights Commission (OHRC) to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code.[*] The OHRC’s policies and guidelines set standards for how individuals, employers, service providers and policy-makers should act to ensure compliance with the Code.

Persons with disabilities, who have had disabilities, or who are perceived to have or have had disabilities are protected against discrimination in all of the social areas of the Code.

This policy is intended to provide particular guidance to those responsible for formulating and implementing infection control procedures in health-care settings and anti-harassment/anti-discrimination policies in the workplace, in housing and in services.

Testing for HIV infection would constitute a medical examination. It is the OHRC's position that any medical examination carried out for employment purposes should focus on verifying whether or not an individual is able to perform the essential duties of a particular job. Employers considering any form of employment-related medical testing should refer to the OHRC's Human Rights At Work, 3rd. Ed. (2008) and the Policy on Employment-Related Medical Information.

It is essential to ensure the maximum degree of privacy and confidentiality when medical information is legitimately required for health protection and promotion or other purposes. This applies in all situations and circumstances including hospitals, health clinics, insurance company records, employee's files, etc. In employment settings, all health assessment information, including HIV testing results, should remain exclusively with the examining physician and away from an employee's personnel file in order to protect the confidentiality of the information.

Freedom from discrimination  Section 1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. Section 2

Please visit www.ontario.ca/humanrights for more information on the human rights system in Ontario. The Human Rights System can also be accessed by telephone at: Local: 416-326-9511 Toll Free: 1-800-387-9080 TTY (Local): 416-326 0603 TTY (Toll Free) 1-800-308-5561