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]
Discrimination because of creed includes any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect the nullification or impairment of the recognition of human rights and fundamental freedoms on an equal basis.[12]
Harassment on the grounds of creed is a form of discrimination. It involves conduct or comments concerning religious beliefs or practices which are known or ought to be known to be offensive. A single incident may constitute harassment and may create a poisoned environment if it is substantial or significant enough.
Example: Management makes an employee’s religious practices or beliefs the subject of jokes or derogatory comments or by other employees. This conduct is a form of harassment and the employee has the right to file a claim with the Human Rights Tribunal of Ontario.
2. Direct and indirect discrimination
Discriminatory practices that fail to meet any statutory justification test[13] are illegal and will be struck down.
Example: Unless the client-employer is a "special interest organization,”[14] an employment agency that screens out all persons who do not share the employer-client's religion is acting illegally. Such practices cannot be justified on the grounds of customer preference.[15]
Example: A public school that gives priority to the Lord's Prayer as part of opening and closing exercises fails to treat non-Christians equally.[16]
Discrimination can also be indirect.
Example: A landlord prefers renting to tenants whose religion is the same as the landlord's. If a tenant refuses to sublet the apartment based on the landlord's "rule,” then the landlord may be also be named as a respondent to a human rights claim.[17]
3. Constructive discrimination
Constructive discrimination arises when a neutral requirement, qualification or factor has an adverse impact on members of a group of persons who are identified by a prohibited ground of discrimination under the Code. Because of its adverse impact, this is said to result in "constructive discrimination.” Section 11(1) of the Code provides that discrimination occurs:
Where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member.
Unless an exception is provided by law, constructive discrimination cannot be tolerated unless the employer takes reasonable steps to accommodate the affected person. A prima facie case of constructive discrimination is established if it can be shown that an individual has been subject to an exclusion, restriction or preference that has had an adverse impact on members of a group protected by the Code.
Typically, in the context of creed, issues arise in the areas of:
- dress codes
- break policies
- recruitment and job applications
- flexible scheduling
- rescheduling
- religious leave.
We will deal each of these special cases in Part 7.
4. Needs of the group
The term “needs of the group" means the needs of the religious group to which an individual belongs. The group's needs must be assessed to accommodate the individual.[18] Courts have looked to the accepted religious practices and observances that are part of a given religion or creed to assess those needs.
Example: School teachers of the Jewish faith request a paid day of leave to observe Yom Kippur. To assess the needs of the group, the employer should seek information about the tenets of the Jewish faith, which establish that observant Jews cannot work on Yom Kippur.[19]
[11] Ibid.
[12] See the International Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981).
[13] S. 24(1)(a) of the Code, for example, allows an institution that primarily serves the interests of an identifiable religious group to prefer job applicants who are also members of that group.
[14] Ibid.
[15] S. 23(4) of the Code.
[16] See Opening and Closing Exercises for Public Schools in Ontario (Ministry of Education and Training, 1993). See also Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641 (Ont. C.A.).
[17] S. 9 of the Code deals with indirect discrimination.
[18] S. 11(2) of the Code.
[19] Commission scolaire régionale de Chambly v. Bergevin (1994), 22 C.H.R.R. D/1 (S.C.C.).