TYPES OF DISCRIMINATORY CONDUCT
(1) HARRASSMENT, (2) SEXUAL
HARASSMENT, (3) POISONED ENVIRONMENT, (4) CONSTRUCTIVE
DISCRIMINATION & (5) SYSTEMIC DISCRIMINATION
HARASSMENT
Protected groups have the
explicit right to freedom from harassment in housing accommodation and
employment. The Code defines
harassment as “engaging in a course of vexatious [annoying or provoking] comment or
conduct which is known or ought reasonably to be known to be unwelcome?’
The most important word in
the definition is “unwelcome.” We do not have the right to impose our
words or actions on someone if they are not wanted. It does not matter if the
person has done this intentionally or unintentionally.
Some people may be shy or
afraid to respond to unwelcome comments or actions. That is why the Code
includes the words “ought reasonably to be known to be unwelcome?’
For example, everyone is
expected to know that racial or ethnic slurs or jokes are unwelcome —the
speaker should not need to be told that the comment is unwelcome. However,
sometimes it is necessary to point out that certain behaviours
are causing discomfort.
“Engaging in a course of”
means that a comment or action would probably have to occur more than once for
it to be considered harassment. However, an employer need only make a comment
such as “People like you have no business here” once to a person of colour or a / woman, for the employee to believe that he or
she will not get equal treatment. Comments like these create a poisoned
environment for members of that group as well as others.
The principles of harassment
(while not explicitly stated in the Code) also apply in the area of services.
For instance, if students harass others because of their race, sex, sexual
orientation, disability, religion etc., this could be grounds for a complaint.
Education is a “service” to which all are equally entitled.
SEXUAL HARASSMENT
Every employee has the
right to be free from sexual harassment from other employees, supervisors and
customers. Tenants also have a
right to freedom from harassment on the basis of sex by the property owner,
property owner’s agent, or another tenant.
Sexual harassment occurs when someone
receives unwelcome sexual attention and the person making the comments or
showing such conduct knows or should reasonably know that the comments or behaviour are offensive, inappropriate, intimidating or
hostile.
The Code is also violated
when anyone receives a sexual solicitation from a supervisor or other person in
a position of authority, if he or she knows or ought reasonably to know it is
unwelcome. It is also a violation when a supervisor threatens or penalizes an
employee for not complying with the sexual demands. /
The Code prohibits sexual
harassment of students by other students, teachers by students and students by
teachers as unequal treatment on the basis of sex.
POISONED ENVIRONMENT
A poisoned
environment is created by comments or conduct that ridicule or insult a person or group protected
under the Code. It violates
their right to equal treatment with respect to services, goods and facilities,
accommodation and employment. It is also produced when such actions or comments
are not directed specifically at individuals. For example, insulting jokes,
slurs or cartoons about gays and lesbians or racial groups, or pin-up photos
that demean women, all contribute to a poisoned environment for members of
those groups.
A poisoned environment can
also be created for individuals at whom the insults are not necessarily
directed. For example, a heterosexual male may be offended by homophobic jokes
because some of his friends may be lesbian, gay or bisexual. Or a person
belonging to a racial minority may believe because of insults that he or she
will not be treated fairly.
It must be clearly evident
that such behaviour is making people feel
uncomfortable in a school or work situation. A single incident may or may
not be enough to create a poisoned environment. Other factors, such as the
seriousness of the behaviour, the relative positions
of the persons involved (employer to employee, landlord to tenant, etc.),
and/or the impact upon the individual’s access (perceived or real) to equal
treatment without discrimination would need to be considered.
The Code asserts that it
is the responsibility of the employer to ensure that a poisoned environment
does not exist in the workplace. Similarly, it is the responsibility of the
teacher and administration as the authority in the school to ensure that a
poisoned environment does not exist for students.
CONSTRUCTIVE DISCRIMINATION
Constructive discrimination occurs
when a seemingly neutral requirement has a discriminatory effect (or adverse
impact) when applied to a group protected under the Code. For example, a requirement that all employees work on
Saturdays could discriminate against those who must worship on that day as part
of their religious practice. Or a height or weight requirement could in general
exclude women and some ethnic or racial minorities from employment positions.
In these cases, in order
to avoid a finding of constructive discrimination, the employer or
organization would need to prove that:
• the job requirement is
bona fide, that is, sincerely believed to be necessary and in an objective
sense, necessary for safety, efficiency or economy; and that
• the person from a protected group cannot be
accommodated without undue hardship to the employer. That is, it would alter
the essential nature of the activity or business, affect its economic
viability or pose a substantial health or safety risk.
SYSTEMIC DISCRIMINATION
Systemic discrimination is
discrimination that is part of the operating procedures of many organizations,
whether a business, service organization or social institution, such as a
school, hospital, government office, law court, etc. It can involve various
forms of discrimination present in the practices of an organization, some of
which may be invisible. It has the effect of denying whole groups of people
theft rights or excluding them from participation. For example:
• Racism or prejudice by those in positions of authority may
violate the rights of members of certain groups, such as when an
organization hires or promotes only White males.
• Biases against groups may mean that they are treated differently.
For example, an organization hires only women in clerical positions and only
men in sales positions.
• A school may discriminate against people with disabilities
in a way that is systemic. For example, there may be no ramps and
automatic doors, no accommodating washrooms, no special learning aids or
testing procedures, all of which bar people with disabilities from access to
the learning opportunities offered.
The Ontario Human Rights Code allows special programs to relieve disadvantage or
achieve equal opportunity in order to counter the effects of systemic
discrimination. Such programs include measures to remove barriers that
discriminate against groups and ensure that disadvantaged groups have the same
advantages that others take for granted.