A policy primer: Guide to developing human rights policies and procedures
Approved by the Ontario Human Rights Commission: June 19, 1996
Revised by the OHRC: December 2013
Available in various accessible formats
1. Introduction
The Ontario Human Rights Code (the Code) states that it is public policy in Ontario to recognize the dignity and worth of every person and to provide equal rights and opportunities without discrimination. The aim is to create a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of and able to contribute to the community.
The purpose of this guide is to provide organizations with some practical help for developing effective and fair ways to prevent human rights infringements, and for responding to human rights issues such as harassment, discrimination and accommodation needs. Employers, landlords and service providers all have an obligation to make sure that human rights are respected, and can all benefit from the information provided in this publication.
Each organization differs in its needs, constraints, structures, culture and resources. There is no “one size fits all” way to prevent and address discrimination and harassment. Large organizations will have different needs and capacities than small; a housing provider will have a different focus than an employer. This guide provides ideas and advice, but each organization will need to tailor its approaches.
The Ontario Human Rights Commission (OHRC) has developed policies and guides on many specific human rights issues, such as racism and racial discrimination, sexual and gender-based harassment, disability accommodation, pregnancy and breastfeeding, age discrimination, gender identity, sexual orientation and family status. This guide does not try to replicate the issues covered in these policies. It focuses on organizational policies and procedures instead of on identifying specific human rights issues and standards. We encourage you to carefully review OHRC policies and guidelines that are relevant to you, to develop an understanding of your human rights obligations and to help you identify potential barriers and issues specific to your situation.
How to use this guide
This guide includes a discussion of each of the key things to consider when developing human rights policies and procedures. It also includes sample language that you can modify to meet your organization’s needs and focus – just look for the indented sections.
2. Organizational responsibility for preventing and addressing human rights issues
A. Why develop positive practices?
Respect for human rights, human dignity and equality is a core value in Canadian society, and a cornerstone of public policy. The courts recognize that human rights legislation has a unique importance, and is considered “quasi-constitutional.” Every Ontarian has an interest in creating a society where human rights are respected, and everyone has the opportunity to equally take part and contribute.
Most importantly, respect for human rights is the law. Under the Code, employers, unions, landlords and service providers must make sure that they provide inclusive and non-discriminatory environments. Harassment and discrimination are a violation of the law, and organizations that fail to take adequate steps to prevent and address harassment and discrimination may be held liable.
Preventing and addressing human rights violations also makes good sense. Housing providers, employers, unions and service providers benefit from creating and maintaining environments that are inclusive, diverse and free of discrimination.
Employers benefit when they can attract and retain the best employees, and maximize the potential and the performance of those employees. Discriminatory policies and programs may prevent employers from attracting, recruiting and promoting good employees, and can result in employee frustration, burnout and turnover. Workplace harassment creates conflict between employees, lowers productivity, and can result in the loss of valued workers. A workplace that respects human rights is likely one with fewer conflicts between employees, and higher levels of employee loyalty.[1]
Service providers benefit when they are better able to attract and serve a wide range of customers, and when they have the capacity to respond to diverse needs. For example, service providers with diverse a workforce may be able to reach out to a wider range of potential clients. Similarly, housing providers who respect human rights will benefit from the ability to attract and retain good tenants, and to prevent conflict between tenants.
When ignored or poorly handled, human rights issues can lead to human rights complaints, workers’ compensation claims, grievances under collective agreements, wrongful dismissal claims, prosecutions under the Occupational Health and Safety Act, or Director’s orders and administrative orders under the Accessibility for Ontarians with Disabilities Act. All organizations can benefit from avoiding the costs in time, money, reputation and morale associated with such claims. Human rights complaints can negatively affect an organization’s image and relationships with the community. A commitment to human rights and diversity can greatly enhance community relationships.
B. Legal obligations[2]
1. General principles
Under the Code, employers, service providers and housing providers have the ultimate responsibility for ensuring a healthy and inclusive environment, and for preventing and addressing discrimination and harassment. They must make sure their organizations are free from discriminatory or harassing behaviour.
An organization can be held responsible for discrimination even if it is done indirectly. For example, an employer that authorizes an employment agency to discriminate on its behalf can be found liable for discrimination.
Discrimination does not have to be intentional. For example, an organization may have a policy that appears to be neutral, but may be discriminatory because it has a negative impact on persons identified by a Code ground. An organization may also be found to have discriminated where its efforts to accommodate or afford equal treatment simply fall short of the mark, despite good intentions.
Organizations also violate the Code if they authorize, condone, adopt or ratify behaviour that is contrary to the Code. To condone or further discrimination that has already happened perpetuates the discriminatory action.
Organizations have an obligation to be aware of whether their policies, practices and programs are having an adverse impact or result in systemic discrimination based on a Code ground. Whether or not a formal complaint has been made, organizations must acknowledge and address potential human rights issues.
Organizations that do not take steps to prevent or address discrimination or harassment may face serious consequences. Human rights decisions are full of findings of liability and assessments of damages that are based on, or aggravated by, an organization’s failure to appropriately address discrimination and harassment.[3] An important factor in assessing liability or damages is the presence or absence of appropriate policies and procedures for preventing and responding to discrimination and harassment.[4]
An organization may respond to complaints about individual instances of discrimination or harassment, but it may still be found to have failed to respond appropriately if the underlying problem is not resolved.[5] There may be a poisoned environment, or an organizational culture that excludes or marginalizes people based on a Code ground. In these cases, the organization should take further steps to address the problem, such as training and education, or reviewing and removing barriers.
Unions, professional organizations and vocational associations are responsible for making sure they do not engage in harassing or discriminatory behaviour against their members or prospective members. They are also responsible for ensuring they are not causing or contributing to discrimination in the workplace. A union may be held jointly liable with an employer where it has contributed towards discriminatory workplace policies or actions – for example, by negotiating discriminatory terms in a collective agreement, or blocking an appropriate accommodation, or failing to take steps to address a harassing or poisoned workplace.
2. Organizational liability for the actions of employees
Under section 46.3(1) of the Code, a corporation, trade union or occupational association, unincorporated association or employers’ organization will be held responsible for discrimination, including acts or omissions, committed by officers, officials, employees or agents in the course of their employment. This is known as vicarious liability. Simply put, an organization is responsible for discrimination that occurs through the acts of its employees or agents, 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.[6] However, since the existence of a poisoned environment is a form of discrimination, when harassment amounts to or results in a poisoned environment, the concept of vicarious liability applies.
In these cases, the “organic theory of corporate liability” may apply. That is, an organization may be liable for acts of harassment carried out by its employees if it can be proven that management was aware of the harassment, or the harasser is shown to be part of the management or "directing mind" of the organization.[7] In summary, the decisions, acts, or omissions of the employee will engage the liability of the organization in harassment cases 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 they are aware of, or ought reasonably to be aware of.
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 guiding employees.[8]For example, a member of the bargaining unit who is a lead hand may be considered to be part of an organization’s “directing mind.”
[1] For a review of some of the research on human rights and workplace productivity, see Bates, Michael and Este, Dr. David, Creating Workplace Environments that Reflect Human Rights Values, Cultural Diversity Institute, University of Calgary, May 2000; Gandz, Dr. Jeffrey, “A Business Case for Diversity,” available online at www.hrsdc.gc.ca; and Iacobucci, Edward M., “Antidiscrimination and Affirmative Action Policies: Economic Efficiency and the Constitution”, (1998) Osgoode Hall L.J. 293-337.
[2] There are other provincial laws related to human rights issues that affect the development of organizational policies and procedures. Organizations have distinct but related responsibilities under the Occupational Health and Safety Act (OHSA) and the Accessibility for Ontarians with Disabilities Act (AODA). These laws promote the values and objectives of the Code but do not limit or replace an organization’s obligations under the Code.
Under the OHSA, employers must develop workplace violence and workplace harassment policies, programs and procedures to investigate and respond to complaints. Requirements under this Act apply to all forms of workplace violence and harassment, not just those that are related to Code grounds. The policies and procedures developed to address workplace violence and harassment may be separate, part of or associated with an employer’s anti-discrimination policies and complaint resolution procedures. For more information on how requirements under the OHSA may affect your organization, see the Ministry of Labour website at www.labour.gov.on.ca/english/hs/pubs/wvps_toolbox/.
Depending on size and type, organizations also have specific responsibilities under the AODA to identify, remove and prevent barriers for people with disabilities. Depending on size and type, an organization may be required to take a number of actions under this legislation, including: developing accessibility policies and plans, incorporating accessibility criteria into procurement practices, and delivering training to staff about the requirements in the Integrated Accessibility Standards Regulation, as well as the Ontario Human Rights Code as it relates to people with disabilities. There are also specific requirements for organizations of different types and sizes in the areas of customer service, information and communication, employment and transportation. To learn more about the requirements in each of these areas and how they may affect your organization, see:
www.mcss.gov.on.ca/documents/en/mcss/accessibility/iasr_guidelines/complete_guidelines.pdf
[3] See, for example, Naraine v. Ford Motor Co. of Canada (No. 4) (1996), 27 C.H.R.R. D/230 (No. 4) (Ont. Bd. Inq.) aff’d (1999), 34 C.H.R.R. D/405 (Ont. Ct. (Gen. Div.), Board of Inquiry’s order upheld except with respect to the issue of reinstatement (2001), 41. C.H.R.R. D/349 (Ont. C.A.), leave to appeal denied [2002] S.C.C.A. No. 69; Smith v. Mardana Ltd. (No. 2) (2005), CHRR Doc. 05-434 (Ont. Div. Ct.). rev’g in part (2002), 44 C.H.R.R. D/142 (Ont. Bd. Inq.); Smith v. Menzies Chrysler Incorporated, 2008 HRTO 37 (CanLII)
Where there is liability under the Code for discrimination due to failure to comply with the procedural and substantive duties to accommodate, organizations may be ordered to develop a human rights policy and complaints procedure. See DiSalvo v. Halton Condominium Corporation No. 186, 2009 HRTO 2120 (CanLII). The lack of policies or procedures will factor into liability or damages, and so will the appropriateness of existing policies to gauge whether the respondent had an understanding of its obligations under the Code. See Puleio v. Moneris Solutions, 2011 HRTO 659 (CanLII). However, in some cases, an employer’s response to address discrimination may be held to be reasonable despite an absence of a human rights policy and training. See Caldeira v. 2068006 Ontario, 2010 HRTO 760 (CanLII). In addition, where liability is found, the HRTO will consider the size of the respondent in assessing which remedies should be ordered. A small employer with no human rights policy may not be ordered to develop and implement one. See Torrejon v. 1147335 Ontario, 2010 HRTO 1513 (CanLII)
[4] See Lavoie v. Calabogie Peaks, 2012 HRTO 1237 (CanLII). In this case, the criteria used to assess the employer’s response to address allegations of discrimination in the workplace included: Was there an awareness of issues of discrimination/harassment in the workplace at the time of the incident? Was there a suitable ant-discrimination/harassment policy? Was a proper complaint mechanism in place? Was adequate training given to management and employees? The application of these criteria was based on a standard of reasonableness.
[5] School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201, (CanLII). Leave to appeal to the Supreme Court of Canada refused: 2005 CanLII 39611 (SCC)
[6] See Caldeira v. 2068006 Ontario, 2010 HRTO 760 (CanLII)
[7] See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (CanLII) and Olarte v. DeFilippis and Commodore Business Machines Ltd. (No. 2) (1983), 4 C.H.R.R. D/1705 (Ont. Bd. of Inq.), aff’d (1984), 14 D.L.R. [4th] 118 (Div. Ct.).
[8] Shroff v. Tipco, 2009 HRTO 1405 (CanLII)
3. Developing organizational policies, programs and procedures
A complete strategy to prevent and address human rights issues should include:
- A plan for preventing, reviewing and removing barriers
- Anti-harassment and anti-discrimination policies
- An internal complaints procedure
- An accommodation policy and procedure
- An education and training program.
An effective strategy will combine all of these elements. For example, while it is an essential part of any human rights strategy, an education and training program on its own will not remove underlying systemic barriers. On the other hand, without education and training, it will be difficult to ensure organizational support for, and compliance with, human rights policies, programs and procedures.
No strategy will be effective without strong, visible and ongoing commitment from the senior levels of the organization.
It is helpful when designing any human rights plan, policy or procedure, to get input from all parts of the organization. For example, input from employees will be invaluable in developing and implementing workplace anti-harassment and anti-discrimination policies, plans or procedures. In a unionized workplace, the union should be a key partner in developing and implementing any human rights strategies. Housing providers may wish to consult tenants, and service providers to seek the views of their clients.
In some cases it would also be wise, where feasible, to seek advice or input from community organizations representing certain groups such as racialized persons, women, people with disabilities, etc. For example, public service organizations that are dealing with complex or systemic barriers may wish to consult with the community when identifying strategies and best practices. This step will help identify issues and effective solutions, and will also increase buy-in and commitment to the policy, plan or procedure.
Policies, plans and procedures must consider the size, complexity, and culture of an organization.[9]For example, the complaints procedure for a small organization will probably be simpler than that for a large, multi-site, unionized organization.
Sound communication strategies are essential to the success of any human rights plan, policy or procedure. Employees, tenants or customers must clearly understand the content of the strategy and their rights and responsibilities, why the strategy was developed and how it will be implemented. Information should be readily accessible and easy to understand.
Identify and address issues or factors that may cause opposition or resistance to the strategy. It is important to regularly remind existing employees, tenants and clients about organizational human rights policies and procedures, as well as to ensure that individuals who are new to the organization receive orientation and training.
All policies, plans and procedures require regular review and revision to make sure they:
- Reflect the current state of human rights law and policy
- Take into account changes in organizational structures or resources
- Address new human rights issues emerging within the organization
- Continue to be effective.
Organizations may want to seek assistance from lawyers or other experts in developing policies, procedures or education programs that will effectively meet their needs. The more complex the organization or the human rights issues, the more likely it will be advisable to seek specialized assistance.
[9] Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 (CanLII)
4. Preventing, reviewing and removing barriers
The Supreme Court of Canada has made it clear that society must be designed to include all people, including members of a Code-protected group.[10] It is no longer acceptable to structure systems in a way that ignores needs or barriers related to Code grounds. Instead, systems should be designed so they do not create physical, attitudinal or systemic barriers. Whenever an organization is constructing new buildings, launching new websites, setting up new policies and procedures, offering new services, or buying new equipment, design choices should be made that do not create barriers for persons identified by Code grounds. This means that organizations should take a proactive approach and incorporate a human rights mindset into all that they do.
In addition, where systems and structures already exist, organizations should be aware of the possibility of systemic barriers, and actively seek to identify and remove them. Where barriers have been identified, organizations must remove them rather than making “one-off” accommodations.
A. Barrier review
Barrier review is a large and complex subject and can only be discussed briefly here. The steps for reviewing barriers will differ depending on the size, nature and complexity of the organization, and on whether the review is focussing on service, employment or housing barriers.
A barrier review should include looking at:
- Physical accessibility: Review physical premises to identify barriers preventing equal access for persons with disabilities, including persons with sensory, environmental or intellectual disabilities.[11] While the Ontario Building Code sets out minimum standards for accessibility, compliance with requirements in effect at the time of construction or renovation is no guarantee that the physical environment meets the standards required by the Human Rights Code. The Code has primacy over the Building Code – which means it takes precedence – and compliance with the Building Code is no defence to a claim of discrimination under the Human Rights Code.[12]
- Organizational policies, practices and decision-making processes: These may be either formal or informal. For example, in the area of employment, policies and practices on recruitment, selection, compensation, training, promotion and termination may contain barriers to people based on Code grounds.[13] A frequent barrier is the lack of formal policies and practices, which can allow subjective considerations and differing standards to be applied. The OHRC’s policies on specific Code grounds and social areas provide examples of frequently encountered barriers.
- Organizational culture: Organizational culture includes shared patterns of informal social behaviour, such as communication, decision-making and interpersonal relationships. These practices are the evidence of deeply held and largely unconscious values, assumptions and behavioural norms. An organizational culture that is not inclusive can marginalize or exclude persons identified by Code grounds.
B. Barrier removal plans
Once barriers to inclusion have been identified, organizations should develop plans to remove them. Plans should:
- Set specific, measurable goals for removing identified barriers
- Create clear timelines for achieving these goals
- Allocate adequate resources to meet these goals
- Ensure accountability and responsibility for meeting goals
- Include a mechanism for regularly reviewing and evaluating progress towards the identified goals.
[10] In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [hereinafter “Meoirin”], the Supreme Court of Canada stated:
Employers designing workplace standards owe an obligation to be aware of both the differences between individuals and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. [at 38]
[11] Considerations for an accessibility review are set out in the OHRC’s 2001 Policy and guidelines on disability and the duty to accommodate, available online at www.ohrc.on.ca. The OHRC’s publication, Dining Out Accessibly, also available online, provides an example of an approach
to reviewing and addressing accessibility issues, in the context of the restaurant industry. The Accessibility Directorate of Ontario provides information and resources on accessibility planning: www.mcss.gov.on.ca/mcss/english/pillars/accessibilityOntario.
[12] Quesnel v. London Educational Health Centre, supra, note 1.
[13] Employers may find of some assistance the materials that the Canadian Human Rights Commission has prepared to help employers with conducting employment systems reviews under the Employment Equity Act. See in particular the December 2002 Employment Systems Review: Guide to the Audit Process, available online at www.chrc-ccdp.ca. The Appendix to the OHRC’s Policy on racism and racial discrimination summarizes common workplace policies, practices and decision-making processes that may lead to systemic discrimination based on race and race-related grounds.
5. Anti-harassment and anti-discrimination policies
A. Description and rationale
Anti-harassment and anti-discrimination policies make it clear that harassment and discrimination will not be tolerated, and set standards and expectations for behaviour. An anti-harassment or anti-discrimination policy should describe the types of behaviour that are discriminatory or harassing, and send the message that these issues are taken seriously. The policy should also set out roles and responsibilities. These human rights policies should be linked to existing organizational policies and integrated into the way the organization operates on a daily basis.
B. Considerations
Harassment is a specific form of discrimination. Because harassment raises unique issues, some organizations have separate policies for harassment and for other forms of discrimination.
As well, because harassment and discrimination related to the various Code grounds often manifest themselves differently, some organizations have specific policies related to discrimination and/or harassment based on sexual orientation, race and race-related grounds, sex, gender identity and gender expression, etc.[14]
Anti-harassment and anti-discrimination policies set out expectations and standards, while complaint procedures set out how potential violations of these policies will be addressed. Many organizations choose to combine their anti-harassment/anti-discrimination policies and procedures into a single document.
In addition, organizations can develop a policy on competing rights to address situations where rights in the workplace may come into conflict. This policy can be part of broader anti-discrimination/anti-harassment policies or a separate document. The OHRC’s Policy on competing rights provides guidance as to what this type of organizational policy should contain.
C. Elements
Note: The sample wording provided in the sections below relates to employment, but can be modified to address housing or services. The sample wording is provided only as an example. There is no single best policy or procedure. You will always need to review policies and procedures to make sure they comply with current human rights law and policy and are appropriate for your organization.
1. Organization commitment
A policy should contain a clear statement of the organization’s commitment to creating and maintaining respect for human rights, and fostering equality and inclusion.
XYZ Organization is committed to providing an environment free of discrimination and harassment, where all individuals are treated with respect and dignity, can contribute fully and have equal opportunities.
Under the Ontario Human Rights Code, every person has the right to be free from harassment and discrimination. Harassment and discrimination will not be tolerated, condoned or ignored at XYZ Organization. If a claim of harassment or discrimination is proven, disciplinary measures will be applied, up to and including termination of employment.
XYZ Organization is committed to a comprehensive strategy to address harassment and discrimination, including:
- providing training and education to make sure everyone knows their rights and responsibilities
- regularly monitoring organizational systems for barriers relating to Code grounds
- providing an effective and fair complaints procedure
- promoting appropriate standards of conduct at all times.
2. Policy objectives
The policy should set out its objectives, such as promoting human rights within the organization, preventing harassment and discrimination, and defining principles and standards for behaviour.
The objectives of this Policy are to:
- Make sure that members, clients and associates of XYZ Organization are aware that harassment and discrimination are unacceptable practices and are incompatible with the standards of this organization, as well as being a violation of the law
- Set out the types of behaviour that may be considered offensive and are prohibited by this policy.
3. Applying the policy
The policy should set out the activities involved and who it applies to. In employment, for example, Code protections have been interpreted broadly, to include temporary, casual and contract staff, as well as volunteers. Employees are protected against harassment and discrimination by co-workers, management and superiors – and they are also protected from the actions of others who enter the employment context, such as suppliers or clients. Employees may be protected while off the work site, or outside of normal working hours, where activities are connected to the workplace. Because employees are entitled to work in an environment free of harassment and discrimination from clients, suppliers or others who enter the employment context, publicly post the policy or make it available
to visitors.
The Code also requires organizations to avoid harassment and discrimination in the services they offer to the public. This includes dealings with customers, potential customers and business associates such as suppliers.
In rental housing, the right to be free from harassment applies both to tenants and applicants. Landlords may be held liable if they do not take steps to ensure that tenants are protected from harassment by other tenants, or by people visiting the premises, such as maintenance and other support staff.
The right to freedom from discrimination and harassment extends to all employees, including full-time, part-time, temporary, probationary, casual and contract staff, as well as volunteers, co-op students, interns and apprentices.
It is also unacceptable for members of XYZ Organization to engage in harassment or discrimination when dealing with clients, or with others they have professional dealings with, such as suppliers or service providers.
This policy applies at every level of the organization and to every aspect of the workplace environment and employment relationship, including recruitment, selection, promotion, transfers, training, salaries, benefits and termination. It also covers rates of pay, overtime, hours of work, holidays, shift work, discipline and performance evaluations.
This policy also applies to events that occur outside of the physical workplace such as during business trips or company parties.
4. List and explain protected grounds
The Human Rights Code prohibits discrimination in five parts of society, called “social areas” – employment, housing, services, contracts and membership in trade, vocational and professional associations. Protection is offered based on 17 grounds (see below). In your policy, set out the applicable Code grounds, together with definitions where necessary. Note that the Code grounds vary somewhat, depending on the social area involved. The ground of “record of offences” applies only in the social area of employment, while the ground of “receipt of public assistance” applies only in housing.
While the Code prohibits discrimination because of pregnancy under the ground of sex, it may be helpful for policies to explicitly identify discrimination and harassment based on pregnancy, as many are unaware of this Code protection.
The policy can also note that people may experience discrimination and harassment based on the intersection of multiple grounds of discrimination (intersectionality). For example, a person who experiences harassment because she is a Muslim woman can file a complaint based on both sex and creed.
Organizations may choose to extend protection beyond that mandated by the Code. For example, some organizations prohibit any form of psychological harassment, or discrimination and harassment based on political opinion.
This policy prohibits discrimination or harassment based on the following grounds, and any combination of these grounds:
- Age
- Creed (religion)
- Sex (including pregnancy and breastfeeding)
- Sexual orientation
- Gender identity
- Gender expression
- Family status (such as being in a parent-child relationship)
- Marital status (including married, single, widowed, divorced, separated or living in a conjugal relationship outside of marriage, whether in a same-sex or opposite-sex relationship)
- Disability (including mental, physical, developmental or learning disabilities)
- Race
- Ancestry
- Place of origin
- Ethnic origin
- Citizenship
- Colour
- Record of offences (criminal conviction for a provincial offence, or for an offence for which a pardon has been received)
- Association or relationship with a person identified by one of the above grounds
- Perception that one of the above grounds applies.
5. Define key concepts
Define key concepts, consistent with human rights law and policy. Offer examples to clarify the concepts.
It may be helpful to provide definitions of related concepts, such as racism, heterosexism, ageism, etc., and to outline common manifestations of discrimination related to specific Code grounds. Consult the relevant OHRC policies for more information.
It is important to note that people experiencing harassment may not outwardly object to the harassing comments or conduct. People may feel unable to object. For example, they may be in a vulnerable situation and be afraid of the consequences of speaking out. It doesn’t matter if someone voices objections or not to the person making the unwelcome comments – they can still make a complaint and the behaviour can still be found to be harassment.
The following behaviour is prohibited:
Discrimination: means any form of unequal treatment based on a Code ground, whether imposing extra burdens or denying benefits. It may be intentional or unintentional. It may involve direct actions that are discriminatory on their face, or it may involve rules, practices or procedures that appear neutral, but disadvantage certain groups of people. Discrimination may take obvious forms, or it may happen in very subtle ways. Even if there are many factors affecting a decision or action, if discrimination is one factor, that is a violation of this policy.
Harassment: means a course of comments or actions that are known, or ought reasonably to be known, to be unwelcome. It can involve words or actions that are known or should be known to be offensive, embarrassing, humiliating, demeaning or unwelcome, based on a ground of discrimination identified by this policy. Harassment can occur based on any of the grounds of discrimination.
Examples of harassment include:
- Epithets, remarks, jokes or innuendos related to a person’s race, gender identity, gender expression, sex, disability, sexual orientation, creed, age, or any other ground
- Posting or circulating offensive pictures, graffiti or materials, whether in print form or via e-mail or other electronic means
- Singling out a person for humiliating or demeaning “teasing” or jokes because they are a member of a Code-protected group
- Comments ridiculing a person because of characteristics that are related to a ground of discrimination. For example, this could include comments about a person’s dress, speech or other practices that may be related to their sex, race, gender identity or creed.
If a person does not explicitly object to harassing behaviour, or appears to be going along with it, this does not mean that the behaviour is okay. The behaviour could still be considered harassment under the Code.
Sexual and gender-based harassment: sexual harassment is a form of harassment that can include:
- Gender-related comments about a person’s physical characteristics or mannerisms
- Paternalism based on gender which a person feels undermines his or her self respect or position of responsibility
- Unwelcome physical contact
- Suggestive or offensive remarks or innuendoes about members of a specific gender
- Propositions of physical intimacy
- Gender-related verbal abuse, threats or taunting
- Leering or inappropriate staring
- Bragging about sexual prowess or questions or discussions about sexual activities
- Offensive jokes or comments of a sexual nature about an employee or client
- Rough and vulgar humour or language related to gender
- Display of sexually offensive pictures, graffiti or other materials including through electronic means
- Demands for dates or sexual favours.
Sexual Solicitation: this policy prohibits sexual solicitations or advances by any person who is in a position to grant or deny a benefit to the recipient of the solicitation or advance. This includes managers and supervisors, as well as co-workers where one person is in a position to grant or deny a benefit to the other. Reprisals for rejecting such advances or solicitations are also not allowed.
Poisoned environment: a poisoned environment is created by comments or conduct (including comments or conduct that are condoned or allowed to continue when brought to the attention of management) that create a discriminatory work environment. The comments or conduct need not be directed at a specific person, and may be from any person, regardless of position or status. A single comment or action, if sufficiently serious, may create a poisoned environment.
6. Roles and responsibilities
Set out the roles and responsibilities of the various parties present in the organization.
All persons present in XYZ organization are expected to uphold and abide by this policy, by refraining from any form of harassment or discrimination, and by cooperating fully in any investigation of a harassment or discrimination complaint.
Managers and supervisors have the additional responsibility to act immediately on observations or allegations of harassment or discrimination. Managers and supervisors are responsible for creating and maintaining a harassment- and discrimination-free organization, and should address potential problems before they become serious.
[14] OHRC policies, available online at www.ohrc.on.ca, provide examples of forms of harassment and discrimination that are specific to each of the various Code grounds.
6. Procedures for resolving complaints
A. Description and rationale
The objective of a complaint resolution mechanism is to ensure that human rights issues are brought to the attention of the organization and are appropriately dealt with. A complaint resolution procedure should set out a clear, fair and effective mechanism for receiving and resolving complaints of discrimination and harassment.[15]
B. Considerations
Designing and implementing complaint mechanisms can affect an organization’s liability for discrimination and harassment.
At minimum:
- Complaints must be taken seriously
- They must be acted upon promptly when received
- Appropriate resources must be applied to resolve complaints
- A viable complaint mechanism must be in place and have been communicated throughout the organization
- The complaint procedure must ensure a healthy work environment is created and maintained for the complainant
- Decisions and actions taken by the organization must be communicated to the parties.[16]
These objectives may be met in a variety of ways. Some organizations will adopt very formal mechanisms; others may opt for a simpler approach. There is no one perfect complaint mechanism – each organization must tailor its own approach, taking into account factors such as its mandate, size, resources and culture.
C. Elements
Note: The sample wording provided in the sections below relates to employment, but can be modified to address housing or services. The sample wording is provided only as an example. There is no single best policy or procedure. You will always need to review policies and procedures to make sure they comply with current human rights law and policy and are appropriate for your organization.
1. Access to information and advice
People who believe they may have witnessed or been subjected to discrimination or harassment, as well as people who are the subject of a complaint of discrimination or harassment, may benefit from having access to expert advice and information about the policy and procedures, as well as on harassment and discrimination in general. Ideally, the advisor will be a neutral expert in the areas of harassment and discrimination, who can explain the various options for dealing with human rights issues. This advisor should be separate from the person designated to receive and investigate complaints, and should not act as an advocate, either for the organization or for the person seeking advice. It is important that the advisor not be liable to pressure from the organization to divert or suppress complaints.
The advisor must make sure that all information is kept in the strictest of confidence, unless required to disclose the information under a legal obligation.
The procedure may describe how advisors will be selected, and specify that advisors will receive appropriate education and institutional support.
XYZ Organization will appoint a neutral and expert Human Rights Advisor, who will provide information about human rights and this policy and procedure to any person who is concerned about possible harassment or discrimination within the organization. The Advisor will not act as an advocate for any person and will not provide legal advice, and will maintain the confidentiality of communications with him or her, unless required to disclose information under a legal obligation.
2. Access to Code mechanisms
It is important to make it clear to employees that having an internal complaint resolution procedure in place does not in any way stop a person from seeking redress under the mechanism set out in the Human Rights Code, if she or he wants to. Tell people about the time limits for seeking redress under the Code.[17] Employees may also have rights under collective agreements that will give them other choices for dealing with a problem.
The provisions of this policy and procedure in no way affect the right of any person to exercise his or her rights under the Ontario Human Rights Code, within the time limits specified by that legislation.
3. Making a complaint
Some complaint mechanisms permit complaints from any person who believes he or she has witnessed harassment or discrimination. Other mechanisms restrict complaints to people who believe they have been subjected to harassment or discrimination.
Complaint procedures may differentiate between “formal” and “informal” processes. Informal processes seek to resolve human rights issues without investigating or assessing the merits of the allegations (for example, by facilitating communication between the people involved). This type of informal process is generally not appropriate where there are serious or systemic allegations. If an informal process is used, it must still be clear that the complaint will be taken seriously and addressed by the people who are responsible.
The procedure should set out forms and processes for making a complaint. However, organizations should address complaints whether or not they are in the requested format.
Since there may be power imbalances at play, or the potential complainant may fear reprisal, or there may be safety issues, do not require complainants to address the matter directly with the potential respondent before using the complaint mechanism.
In some cases, you may have to take temporary steps while the investigation or dispute resolution is proceeding, to safeguard the environment of the complainant. For example, it may be necessary to limit contacts between the respondent and the complainant. Make sure that the steps taken do not penalize the complainant for making the complaint. Treat any concerns about the complainant’s safety with the utmost seriousness.
Complainants are encouraged to explain to the person who is harassing or discriminating against them that the conduct is unwelcome, but are not obliged to do so. Indeed, each case is different. If addressing the person responsible could lead to an escalation of the harassment or discrimination, or to safety risks, complainants should not be expected to have to directly interact with that person. If a complainant feels they can safely make it known to the person responsible that the behaviour is unwelcome, of course this may resolve the matter, or may help them later if they make a complaint. However, the complainant should never feel obliged to address their harasser against their better judgement.
If the situation cannot be resolved by speaking to the person responsible, a complaint may be made by speaking to either: (1) the manager, or (2) the Manager of Human Resources.
Where possible, the complaint should be made in writing, including details of:
- What happened – a description of the events or situation
- When it happened – dates and times of the events or incidents
- Where it happened
- Who saw it happen – the names of any witnesses, if any.
- The person receiving the complaint will notify the person(s) complained against (the respondent(s)) of the complaint and provide the respondent(s) with a copy of the written complaint.
If necessary, the complainant or the respondent will be placed on a paid leave of absence, moved to a different location within the organization, or provided with alternative reporting relationships. The decision will be made on a case-by-case basis, and will reflect the principle that the complainant will not be penalized for making the complaint.
4. Reprisal
Persons who make a complaint, as well as anyone else who is involved, should not face negative consequences for taking part in the complaint process. In other words, they should be free from "reprisal." Protection under the Code from reprisal covers:
- Complainants
- Witnesses
- Advisors
- Representatives of complainants and witnesses
- Investigators
- Decision makers/management.
A person who believes that he or she has been subjected to reprisal should be able to file a complaint under the procedure.
Every person has a right to claim and enforce their right to a workplace free of harassment and discrimination. No person shall be negatively treated for bringing forward a complaint, providing information related to a complaint, or helping to resolve a complaint. It is a violation of XYZ Organization policy to discipline or punish a person because he or she has brought forward a complaint, provided information related to a complaint, or otherwise been involved in the complaint resolution process. Reprisal may be the subject of a complaint under this procedure, and persons engaging in reprisal are subject to disciplinary measures, up to and including termination of employment.
5. Dispute resolution
When developing complaint procedures, it is a good idea to use Alternative Dispute Resolution (ADR) as part of a "best practices" approach.
ADR can provide a means of resolving a situation at any stage during the complaint process.[18]
ADR can be a simple, informal procedure using a peer review panel or other trained internal employee. However, the sensitivity of human rights complaints from both an employer/organizational and employee perspective, coupled with the need for strict confidentiality, suggest that a more formalized type of ADR might be more appropriate.
A mediator is a neutral third party who acts as a facilitator to help the parties reach a negotiated settlement that both parties agree to. ADR can take the form of internal or external mediation, depending on whether persons with the needed skills, expertise and neutrality are available within the organization.
It is generally good practice for mediation to be separate from the investigation process. Parties may find it easier to speak freely and reach agreement if information from the mediation process is kept separate from any investigation process.
It is important to recognize that ADR will not be appropriate in all cases – for example, in situations where there are significant power imbalances. The OHRC recommends that ADR be offered as a voluntary option.
Where appropriate, the person receiving the complaint will offer the parties an opportunity to mediate the complaint. No person will be required to undertake mediation. Mediation will be conducted by a neutral and expert third-party mediator. Mediation may take place at any stage during the complaint process.
6. Appointing an investigator
The organization must take steps to investigate the circumstances of a complaint. The person selected to do the investigation should be independent and objective. Wherever possible, the investigator should not be in a position of direct authority over any of the people involved in a complaint, but should report to someone with the authority to make decisions and have them enforced.
An investigation may be conducted by a member of the organization, or by someone external. An investigation should not be carried out by anyone who is seen as taking sides with either party. For example, it is not very likely that a lawyer who often represents management in labour disputes will be seen as “objective” by non-management employees. Similarly, a human resources manager who is normally involved in discipline and termination decisions may not be seen as independent. Also, the investigator should not be someone in a position to have any power or influence over the career progress of either of the parties.
Persons conducting investigations must be knowledgeable about:
- Human rights issues and principles in general
- The requirements of the Code
- The organization’s anti-harassment/anti-discrimination policy and complaints procedure
- Methods for conducting investigations.
Similar considerations apply to any person whose role is to mediate or conciliate a complaint.
Where mediation is not appropriate or is not successful, the person receiving the complaint will refer the complaint to an expert external investigator.
7. Representation
The people involved in an internal complaint resolution process should be allowed to have someone represent them if they wish, whether during mediation or investigation. Representatives may include union stewards or a colleague.
Complainants and respondents are entitled to seek representation of their choice, including legal counsel, during the complaints process, at their own expense.
8. Documentation
For everyone involved in the process, it is important to make and keep written notes about the events leading to the complaint. These details should include:
- What happened – a description of the events or situation
- When it happened – dates and times of the events or incidents
- Where it happened
- Who saw it happen – the names of any witnesses, if any.
As well, gather any other documents or materials that may have something to do with the complaint, such as letters, notes, offensive pictures, etc. Note that allegations of systemic discrimination may require organizations to gather a broad range of documents (for example, you may need to gather and maintain demographic information related to the organization).
Documentation related to the investigation should be collected and preserved. This includes witness interviews, notes of meetings, evidence gathered, any investigation report, and documentation on the outcome of the investigation. Safeguard these documents at least until the conclusion of any human rights proceedings or of limitation periods related to human rights proceedings.
Every person who believes he or she has experienced harassment or discrimination, as well as every person who has been notified of a complaint against them, is advised to create and keep written notes about the events at issue, and to maintain any relevant written documentation.
9. Confidentiality and privacy
It may be very difficult to bring forward a complaint of harassment or discrimination. Protecting confidentiality and privacy is important, both to the person bringing forward the complaint, and the person(s) the complaint is made against.
Only share information about the complaint with people who need to know about it. For example, the person the complaint is against will need to know about the particulars of the complaint to respond to it. Witnesses will need some information about the incidents they are said to have been involved in or allegations they have knowledge of.
Investigators, mediators, advisors and any other persons involved with the complaints process should protect confidentiality and privacy, and maintain the security of all documents related to complaints, including contents of meetings, interviews and investigation reports.
Advisors, investigators, mediators and persons receiving complaints will, to the extent possible, protect the confidentiality and privacy of persons involved in a complaint, subject to the requirements of a fair investigation and resolution process.
All documents related to a complaint, including the written complaint, witness statements, investigation notes and reports, and documents related to the complaint, will be securely maintained by the Human Resources Department, separate from personnel files.
10. Investigation processes
The investigation of the complainant must be impartial, timely, fair, and address all relevant issues.
The investigator should thoroughly interview both the complainant and the person(s) alleged to have engaged in harassment or discrimination against the complainant. The respondents should be given the opportunity to respond to each of the specific allegations raised by the complainant. The investigator should also interview any relevant witnesses identified by either the complainant or the respondent(s), and gather any relevant documents. Proper notes should be taken during interviews.
The investigator should prepare a report summarizing the allegations, the steps taken during the investigation, and the evidence gathered. The report may make findings of fact and recommendations for further action, or these functions may be assigned elsewhere.
In most cases, investigations should start immediately after an investigator is chosen, and finish within a fixed time frame (for example, 90 days).
The investigator is responsible for ensuring a thorough, fair and impartial investigation of the allegations in the complaint. The investigator will interview the complainant, the respondent(s), and relevant witnesses suggested by the complainant or respondent(s), as well as gather documents relevant to the matters in the complaint.
All staff of the organization are required to cooperate with the investigator.
The investigator will, wherever possible, complete the investigation within 90 days of receiving the assignment.
At the conclusion of the investigation, the investigator will prepare a written report summarizing the allegations and the investigation results, and will forward the report to the Human Resources Manager.
11. Potential outcomes
Based on the findings of the investigation and human rights law and policy, a decision must be made about whether the complaint is well-founded. If the complaint is well-founded, the organization must take steps to address the human rights violations and prevent future occurrences.
Human rights laws are preventive and remedial rather than punitive, and this should be reflected in the outcomes of substantiated complaints.
Where harassment or discrimination is found to have occurred, make sure that steps are taken to ensure that the complainant is, to the extent possible, “made whole” and the effects of the discrimination remedied.
Persons who violate the anti-discrimination/anti-harassment policy may face a range of consequences, including an apology, education, counselling, reprimands, suspension, transfer or termination of employment, depending on the nature and severity of the behaviour.
As well, consider whether the complaint (whether it is determined to be founded or unfounded) reveals any broader issues that the organization should address. The investigation may, for example, point to specific barriers in the workplace, a perception of systemic discrimination, or a need for further training on particular human rights issues. If so, take steps to remedy the problem.
Complainants should not be automatically penalized where a complaint is determined to be unfounded, as this may deter people from making valid complaints. There may be very rare cases, however, where there is objective evidence to show that the complaint was maliciously filed, with deliberate intent to injure or mislead. Only where the evidence of malice in bringing a complaint is compelling and undeniable should disciplinary measures of any sort apply to complainants.
Based on the findings in the investigator’s report, the Human Resources Manager will decide whether the policy has been violated.
If the policy has been violated, the Human Resources Manager will determine the appropriate consequences for the person(s) who violated the policy. These may include:
- An apology
- Counselling
- Education and training
- Verbal or written reprimand
- Suspension with pay
- Suspension without pay
- Transfer
- Termination of employment.
In determining the appropriate consequences, the Human Resources Manager will take into account the nature of the violation of the policy, its severity, and whether the individual has previously violated the policy.
Where a violation of the policy is found, the Human Resource Manager will also take any steps necessary to repair the effects of the discrimination or harassment on the complainant, and to prevent any further recurrences of harassment or discrimination within the organization.
The Human Resources Manager will be responsible for monitoring the outcome of the complaint.
12. Communication
The complainant and the respondent(s) must be apprised of the outcome of the investigation, and in particular, whether the policy was found to have been violated, and any actions that will be taken as a result.
The complainant and the respondent(s) will each be provided with a copy of the investigator’s report, and with the Human Resources Manager’s decision regarding outcomes.
Where a complainant is dissatisfied with the outcome of the complaint, he or she will be reminded of his or her rights under the Ontario Human Rights Code.
[15] There should be a viable complaint mechanism in place, including the ability for a complaint mechanism to function in the absence of an identifiable accused. See Ford v. Nipissing University, 2011 HRTO 204 (CanLII). In this case, the HRTO found that Nipissing University discriminated against the complainant by failing to fulfill its procedural obligation regarding a sexual harassment complaint stemming from an anonymous email.
[16] In Wall v. University of Waterloo (1995) 27 C.H.R.R. D/44 (Ont. Bd. of Inq.), the Board of Inquiry set out six elements of a reasonable response to a complaint: 1) the complaint is dealt with promptly; 2) the employer is addressing the issue of harassment/discrimination and providing appropriate resources to deal with it, including ensuring that management and employees are aware of the standards of behaviour; 3) the complaint is taken seriously; 4) there is an adequate complaint mechanism in place, which includes ensuring adequate access to information and advice to complainants, and of which management and employees have been advised; 5) a healthy work environment is restored for the complainant; and 6) management communicates its actions to the complainant.
[17] Under ss.34 (1) and (2) of the Code, an application to the HRTO must be made within one year after the incident to which the application relates, or if there was a series of incidents, within one year after the last incident in the series. The HRTO may accept late applications if it is satisfied that the delay was made in good faith and no substantial prejudice will result to any person affected by the delay.
[18] The OHRC’s Guide to releases with respect to human rights complaints (2006), available online at www.ohrc.on.ca, provides information on structuring agreements and releases that accord with human rights principles.
7. Accommodation policy and procedure
A. Description and rationale
Under the Code, organizations are required to prevent and remove barriers and provide accommodation to the point of undue hardship. The principle of accommodation arises most frequently in the context of creed, family status, sex (pregnancy) and disability, as well as age, gender identity and gender expression.
Organizations, including their officers, managers, supervisors and union representatives, have a shared obligation to design for inclusion of persons identified by Code grounds, as well as to remove barriers and provide accommodation. Failure to fully explore accommodation options and to fulfil the duty to accommodate is a violation of the Code.
A clear and effective accommodation policy and procedure ensures that accommodation seekers feel comfortable raising their accommodation needs, and that accommodation requests are effectively dealt with.
While accommodation in most cases is straightforward and simple, it can sometimes be a lengthy and complex process. In any case, it is important that the accommodation process, as well as the accommodation itself, be effective and respect the dignity of accommodation seekers.[19]Both accommodation providers and people seeking accommodation benefit from clearly understanding their roles and responsibilities and the accommodation process. Clear, fair and comprehensive accommodation policies and procedures help organizations to meet their duty to deal fairly, thoroughly and effectively with accommodation requests.[20]
B. Considerations
The standards and principles for accommodation are set out in the relevant OHRC policies and guidelines, such as:
Policy and guidelines on disability and the duty to accommodate
Guidelines on accessible education
Policy and guidelines on discrimination on the basis of family status
Policy on creed and the accommodation of religious observances
Policy on discrimination because of pregnancy and breastfeeding
Policy on discrimination against older persons because of age
Policy on harassment and discrimination because of gender identity.
Consult these documents for a fuller understanding of the standards and legal requirements of accommodation, and of accommodation issues related to particular Code grounds.
Note that some accommodations are very simple and straightforward, and do not require a formal or complex process.
The way an accommodation is provided and how it is implemented are subject to human rights standards. The principles of dignity, individualization, inclusion and full participation apply both to the substance of an accommodation, and to the accommodation process.
At the heart of the accommodation process is the responsibility, shared by all parties, to have a meaningful dialogue about accommodation, and to work together respectfully towards accommodation solutions. Everyone involved should co-operatively engage in the process, share information, and work towards potential accommodation solutions.
C. Elements
Note: The sample wording provided in the sections below relates to employment, but can be modified to address housing or services. The sample wording is provided only as an example. There is no single best policy or procedure. You will always need to review policies and procedures to make sure they comply with current human rights law and policy and are appropriate for your organization.
1. Statement of commitment
An accommodation policy and procedure should include a clear statement of
the organization’s commitment to providing an environment that is inclusive and barrier-free, and to providing accommodation to the point of undue hardship.[21] Undue hardship takes into consideration cost, outside sources of funding and health and safety.
XYZ Organization is committed to providing an environment that is inclusive and that is free of barriers based on age, race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex (including pregnancy) gender identity, gender expression, sexual orientation, record of offences, marital status, family status and disability. XYZ Organization commits to provide accommodation for needs related to the grounds of the Ontario Human Rights Code, unless to do so would cause undue hardship, as defined by the Ontario Human Rights Commission’s Policy on disability and the duty to accommodate.
Accommodation will be provided in accordance with the principles of dignity, individualization and inclusion. XYZ Organization will work cooperatively, and in a spirit of respect, with all partners in the accommodation process.
2. Objectives of the policy and procedure
The policy and procedure should have clearly identified objectives.
The purpose of this Accommodation Policy and Procedure is to:
- Ensure that all members of the organization are aware of their rights and responsibilities under the Ontario Human Rights Code with respect to accommodation
- Set out in writing the organization’s procedures for accommodation and the responsibilities of each of the parties to the accommodation process.
3. Applying the policy and procedure
The policy and procedure should set out the scope of its application.
Accommodation should be provided to existing employees, tenants or clients. It should also be provided to people applying for housing, employment or services. For example, job-seekers may need accommodation during the interview or screening process. Develop procedures to inform applicants of their right to accommodation for needs related to Code grounds, and to assure them that accommodation requests will not negatively affect the evaluation process. Similarly, in a service setting, prominently post accommodation policies and procedures in a place that customers have regular access to, so that clients are aware of and able to make use of the policy and procedure.
This policy and procedure applies to all employees, including full-time, part-time, temporary, casual and contract staff, as well as people who work to gain experience or for benefits, such as volunteers, co-op students, interns and apprentices. It also applies to people who are applying for employment with the organization.
It applies at all stages and to all aspects of the employment relationship, including recruitment and selection, promotions and transfers, and conditions of work such as hours of work and leaves of absence.
It applies to all organization locations.
All new and existing employees will be provided with a copy of this accommodation policy and procedure. All job applicants who are selected for an interview will be notified of the accommodation policy and procedure before the interview.
4. Requests for accommodation
It is very important to note that some people may be unable to disclose or communicate accommodation needs, due to the nature of their disability. For example, persons with some mental disabilities may be unaware of their accommodation needs, or may be reluctant to disclose them because of fear of stigma and stereotypes. Organizations should offer assistance and accommodation to persons who are clearly unwell and in need of assistance, or who are perceived to have a disability, even where no accommodation request is made.
While it may be preferable that accommodation requests be made formally and in writing, take all accommodation requests seriously, regardless of the format of the request.
Make requests for accommodation to your manager.
Accommodation requests should, whenever possible, be made in writing. The accommodation request should indicate:
- The Code ground the accommodation is being requested on
- The reason accommodation is required, including enough information to confirm the existence of a need for accommodation
- The specific needs related to the Code ground.
All accommodation requests will be taken seriously. No person will be penalized for making an accommodation request.
5. Providing information
The parties to the accommodation process must share information about accommodation needs and potential solutions. In some cases, you may need to get expert opinions or information to confirm the need for accommodation, or to determine appropriate accommodations.
However, be careful to collect only information that is necessary. In some cases, the need for accommodation is obvious and there is no need for special documentation. For example, persons who use wheelchairs will have difficulty accessing buildings that are approached by steps, and pregnant employees will often need more frequent bathroom breaks. Even where some documentation is required, this does not justify a “fishing expedition.” For example, a request for adjustments to computer equipment related to diminishing eyesight would not usually justify a request to review the accommodation seeker’s complete medical file. A careful approach to collecting documentation protects the privacy of the accommodation seeker – and it protects the accommodation provider from potential complaints. All parties must exercise good faith in seeking and providing information.
The policy should address the question of who collects and keeps documentation related to accommodation requests, taking into account the nature and complexity of the accommodation request, the sensitivity of the information involved, and the organizational capacity. Where a workplace has a medical or human resources department, that department should be the custodian of an employee’s medical or personal information. If this is the case, these departments should communicate to an employee’s supervisor the duties the person can and cannot perform and not the details of the employee’s medical condition or personal situation.
The manager, Human Resources Manager or Medical Department may require more information related to the accommodation request, in the following circumstances:
- Where the accommodation request does not clearly indicate a need related to a Code ground
- Where more information on the employee’s limitations or restrictions is needed to determine an appropriate accommodation
- Where there is a demonstrable objective reason to question the legitimacy of the person’s request for accommodation.
Where expert assistance is needed to identify accommodation needs or potential solutions, the accommodation seeker is required to cooperate in obtaining that expert advice. Any costs associated with obtaining such expert advice will be borne by XYZ Organization.
Failure to respond to such requests for information may delay the provision of accommodation.
The Manager, Human Resources Department or Medical Department will maintain information related to:
- The accommodation request
- Any documentation provided by the accommodation seeker or by experts
- Notes from any meetings
- Any accommodation alternatives explored
- Any accommodations provided.
This information will be maintained in a secure location, separate from the accommodation seeker’s personnel file, and will be shared only with persons who need the information.
6. Privacy and confidentiality
Requests for accommodation may involve disclosing private or highly sensitive information. Ask people requesting accommodation only for information required to establish the foundation of the accommodation request, and to respond appropriately to the request. For people to feel comfortable making accommodation requests, they must feel confident that the information they provide will be treated confidentially, and shared only as needed for the accommodation process. It is generally advisable for employers to keep information about accommodation requests separate from the individual’s regular personnel file.
The organization will maintain the confidentiality of information related to an accommodation request, and will only disclose this information with the consent of the employee or applicant.
7. Accommodation planning
The accommodation process is a shared responsibility, and everyone involved must work cooperatively, share information, and work towards potential accommodation solutions. It is in everyone’s best interests that congenial and respectful relationships be maintained throughout the accommodation process.
It is helpful to document the accommodation process and the result in a formal accommodation plan. This ensures that the parties clearly understand their roles and responsibilities, and facilitates accountability and regular monitoring.
Accommodation requests will be dealt with promptly. Where necessary, interim accommodation will be provided while long-term solutions are developed.
The manager, the person requesting accommodation related to a Code ground and, where appropriate, the Human Resources Manager and any necessary experts will work together to develop an Accommodation Plan for the individual.
The Accommodation Plan, when agreed on, will be put in writing, and signed by the individual requesting accommodation, the Manager and the Human Resource Manager. It may include:
- A statement of the accommodation seeker’s relevant limitations and needs, including any needed assessments and information from experts or specialists, bearing in mind the need to maintain the confidentiality of medical reports
- Arrangements for needed assessments by experts or professionals
- Identification of the most appropriate accommodation short of undue hardship
- A statement of annual goals, and specific steps to be taken to meet them
- Clear timelines for providing the accommodation
- Criteria for determining the success of the accommodation plan, together with a process for reviewing and re-assesing the accommodation plan as needed
- An accountability mechanism.
8. Appropriate accommodations
Accommodation may take many forms. What works for one person may not work for another. Each person’s situation must be individually assessed. In each case, the organization must implement the most appropriate accommodation, short of undue hardship. An accommodation will be appropriate where it results in equal opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges experienced by others, and where it respects the principles of dignity, inclusion and individualization.
The aim of accommodation is to remove barriers and ensure equality. Accommodations will be developed on an individualized basis. Appropriate accommodations may include:
- Work station adjustments
- Job redesign
- Changes to organizational policies and practices
- Technical aids
- Human support
- Providing materials in alternative formats
- Building modifications
- Counselling and referral services
- Temporary or permanent alternative work
- Changes to performance standards
- Leaves of absence
- Changes to scheduling or hours of work
- Changes to work uniforms.
This list is not exhaustive.
9. Monitoring accommodations
Accommodation needs and organizational structures may change over time. As well, accommodations may require adjustments during and after implementation, to improve effectiveness or efficiency. So it is important to regularly monitor and review the accommodation plan.
The manager and the person receiving accommodation will monitor the success of the Accommodation Plan, and promptly address any deficiencies or any relevant changes in the workplace or the employee’s needs.
10. Undue hardship
Accommodation must be provided to the point of undue hardship. It is the OHRC’s position that, in assessing undue hardship, only the three legislated factors of cost, outside sources of funding and health and safety may be taken into account. The standard for undue hardship is high, and the burden of proof is on the accommodation provider.
Careful analysis and research is required before concluding that a particular accommodation will result in undue hardship. Determining that accommodation will cause undue hardship is a complex decision, with potentially significant legal consequences, and should therefore be made at the senior levels of the organization. The basis for this conclusion should be thoroughly documented, and the accommodation seeker provided with clear reasons for the decision.
A decision that a particular accommodation would result in undue hardship does not end the accommodation process. Accommodation is not an all-or-nothing proposition, and can be seen as a continuum. Where the most appropriate accommodation would result in undue hardship, the organization must consider other alternatives, such as phased-in or next-best accommodations.
Accommodation will be provided to the point of undue hardship, as defined by the Ontario Human Rights Commission’s Policy and guidelines on disability and the duty to accommodate. A decision on undue hardship will be based on an assessment of costs, outside sources of funding, and health and safety. It will be based on objective evidence.
Only the Chief Administrative Officer of XYZ Organization can determine that an accommodation will create undue hardship.
Where an accommodation is assessed to create undue hardship, the person requesting accommodation will be given written notice, including the reasons for the decision and the objective evidence relied upon. The accommodation seeker will be informed of his or her recourse under XYZ Organization’s Anti-Discrimination Policy and Procedure, and under the Ontario Human Rights Code.
Where a decision has been made that an accommodation would cause undue hardship, XYZ Organization will proceed to implement the next best accommodation short of undue hardship, or will consider phasing in the requested accommodation.
[19] In determining whether the duty to accommodate has been met, the procedure to assess accommodation is as important as the substance of the accommodation. Meoirin, supra, note 10 at para. 66.
[20] Krieger v. Toronto Police Services Board, 2010 HRTO 1361 (CanLII)
[21] Human rights statutes in some jurisdictions refer to “reasonable accommodation.” Despite the difference in wording, “reasonable accommodation” imposes the same requirements as “accommodation to the point of undue hardship” – the standard set out in the Ontario Code. As was stated by the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud [1992] S.C.R. 970, at para.19: “The extent to which the discriminator must go to accommodate is limited by the words ’reasonable‘ and ’short of undue hardship.’ These are not independent criteria, but are alternate ways of expressing the same concept.”
8. Education and training programs
A. Description and rationale
Education and training are core elements of any organization’s human rights strategy. They are central to any effort to build a “human rights culture” within an organization. Education and training can deepen understanding and awareness of human rights issues, and build support for the organization’s human rights initiatives. As well, every member of the organization should have a solid understanding of their rights and responsibilities under the Code, and of the organization’s policies, programs and procedures for preventing and addressing human rights issues.
However, education is not a “cure-all” for all human rights issues. For example, education will not, on its own, remove systemic barriers. Education works best along with 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.
B. Considerations
On an ongoing basis, organizations should monitor human rights issues that affect them, and provide their members with human rights education that is timely and appropriate.
An effective human rights education program will include training on:
- Organizational policies and procedures related to human rights
- The principles and specific provisions of the Code
- General human rights issues such as racism, ableism, sexism, homophobia, ageism, etc.[22]
Training must be tailored to the specific needs of the various members of the organization.[23] All members of the organization will need to be aware of their rights. As well, specific education is required for the people responsible for:
- Complying with policies (everyone)
- Implementing policies (managers, supervisors)
- Providing expert advice, ensuring compliance (for example, HR)
- Overall human rights strategy (for example, the CEO).
Organizations should ensure that those who carry out human rights training have expertise in the specific subject area.
Training should emphasize that human rights policies and programs are in harmony with the organization’s objectives, and have the full support of senior management.
Human rights education should not be a one-time event. Ongoing training should be provided to address developing issues, and regular refreshers provided to all staff. The effectiveness of training should be monitored, and any identified gaps should be promptly addressed.
C. Elements
1. General human rights training
Human rights education is essential to developing a “human rights culture” within the organization, one that supports the values and principles that underlie the Code. Without an understanding of human rights issues, and support for a human rights culture, human rights policies and procedures are unlikely to succeed.
Beyond knowledge of the legal rights and responsibilities set out in the Code, it is important to understand discrimination and harassment related to the various Code grounds, and how they manifest themselves. For example, it will be very difficult for an organization to address and prevent systemic racial discrimination without educating its members about what racism is, how it operates, common manifestations of racism and racial discrimination, and the legacy of racism in Canada.
2. Training on the Ontario Human Rights Code
All members of the organization should know the principles of the Code, and their legal rights and responsibilities related to human rights. People responsible for developing organizational strategy, policies and procedures on human rights issues will need more in-depth training on human rights laws, and regular updates on new issues, policies and legal developments.
3. Training on organizational policies and procedures
Organizations should make sure that all members are aware of internal human rights policies and procedures. Everyone should know what the standards are, what their rights and responsibilities are under the policies and procedures, and how they can get advice or assistance on human rights issues. Provide everyone with policies and procedures, together with training, when they are introduced. Share them with newcomers when they join the organization, and provide everyone with regular reminders and refreshers.
Persons who will be responsible for implementing human rights policies and procedures will need more extensive training and information. This includes managers and supervisors, as well as staff who may receive, investigate, mediate or decide on complaints or accommodation requests.
[22] See the OHRC’s policies on these issues online at www.ohrc.on.ca/en/our_work/policies_guidelines
[23] Szyluk v. United Food and Commercial Workers Canada, 2010 HRTO 2051 (CanLII)
Purpose of OHRC policies
Section 30 of the Ontario Human Rights Code authorizes the 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. They are important because they represent the OHRC’s interpretation of the Code at the time of publication.[24] Also, they advance a progressive understanding of the rights set out in the Code.
Section 45.5 of the Code states that the Human Rights Tribunal of Ontario (HRTO) may consider policies approved by the OHRC in a human rights proceeding before the HRTO. Where a party or an intervener in a proceeding requests it, the HRTO shall consider an OHRC policy. Where an OHRC policy is relevant to the subject-matter of a human rights application, parties and interveners are encouraged to bring the policy to the HRTO’s attention for consideration.
Section 45.6 of the Code states that if a final decision or order of the HRTO is not consistent with an OHRC policy, in a case where the OHRC was either a party or an intervener, the OHRC may apply to the HRTO to have the HRTO state a case to the Divisional Court to address this inconsistency. OHRC policies are subject to decisions of the Superior Courts interpreting the Code. OHRC policies have been given great deference by the courts and the HRTO[25], applied to the facts of the case before the court or the HRTO, and quoted in the decisions of these bodies.[26]
For more information
For more information on the human rights system in Ontario, visit:
To make a human rights complaint – called an application – contact the Human Rights Tribunal of Ontario at:
Toll Free: 1-866-598-0322
TTY Toll Free: 1-866-607-1240
Website: www.hrto.ca
To talk about your rights or if you need legal help, contact the Human Rights Legal Support Centre at:
Toll Free: 1-866-625-5179
TTY Toll Free: 1-866-612-8627
Website: www.hrlsc.on.ca
For human rights policies, guidelines and other information, visit the Ontario Human Rights Commission at www.ohrc.on.ca
Follow us!
Facebook: www.facebook.com/the.ohrc
Twitter: @OntHumanRights
[24] Note that case law developments, legislative amendments, and/or changes in the OHRC’s own policy positions that took place after a document’s publication date will not be reflected in that document. For more information, please contact the OHRC.
[25] In Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R. D/474 at para. 53 (Ont. Bd. of Inq.), the Board of Inquiry applied the United States Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (4th Cir. 1971) to conclude that OHRC policy statements should be given “great deference” if they are consistent with Code values and are formed in a way that
is consistent with the legislative history of the Code itself. This latter requirement was interpreted to mean that they were formed through a process of public consultation.
[26] The Ontario Superior Court of Justice has quoted at length excerpts from the OHRC’s published policy work in the area of mandatory retirement, and stated that the OHRC’s efforts led to a “sea change” in the attitude towards mandatory retirement in Ontario. The OHRC’s policy work on mandatory retirement heightened public awareness of this issue and was at least partially responsible for the Ontario government’s decision to pass legislation amending the Code to prohibit age discrimination in employment after age 65, subject to limited exceptions. This amendment, which was effective December 2006, made mandatory retirement policies illegal for most employers in Ontario: Assn. of Justices of the Peace of Ontario v. Ontario (Attorney General) (2008), 92 O.R. (3d) 16 at para. 45. See also Eagleson Co-Operative Homes, Inc. v. Théberge, [2006] O.J. No. 4584 (Sup.Ct. (Div.Ct.)) in which the Court applied the OHRC’s Policy and guidelines on disability and the duty to accommodate, available at: www.ohrc.on.ca/en/resources/Policies/PolicyDisAccom2