Sometimes a rule or practice unintentionally singles out particular people and results in unequal treatment. This type of unintentional discrimination is called “constructive” or “adverse effect” discrimination.
For example, an employer has a rule that male employees must be clean- shaven. Using this rule, the employer refuses to hire a Sikh man who, according to his religion, is not allowed to shave. The rule is not “intended” to exclude Sikh men from a job, but it has this effect. Unless an employer can show that a change or exception to the rule would be too costly or create a health and safety danger, the employer should agree to change the rule.
3. Prima facie discrimination because of disability
Once a disability within the meaning of section 10 of the Code is established, the individual has the burden of showing a prima facie case of discrimination.
Discrimination under the Code can be direct (refusal to grant a job or provide access to services or housing, for example, because of a disability), indirect, constructive (adverse effect) or based on society’s failure to accommodate actual differences.
Relevant Ontario Human Rights Code provisions
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,
Drug and alcohol testing: direct or constructive discrimination?
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.
Appendices - relevant legislation
Human Rights Code
SERVICES
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 handicap. R.S.O. 1990, c. H.19, s. 1.
CONTRACTS
Discrimination
1. Discrimination and harassment
In Dufour v. J. Roger Deschamps Comptable Agréé, a human rights tribunal stated that:
[H]arassment or discrimination against someone because of religion is a severe affront to that person's dignity, and a denial of the equal respect that is essential to a liberal democratic society.[11]
Language-related grounds of discrimination: ancestry, ethnic origin, place of origin, race
The first language we learn is frequently the language spoken by our parents or guardians and others who take care of us as children. There is almost inevitably a link between the language we speak or the accent with which we speak a particular language on the one hand, and our ancestry, ethnic origin or place of origin on the other.[4]
Introduction
The Code states that it is public policy in Ontario to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The provisions of the Code are aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and feels able to contribute to the community.