Ontario’s Human Rights Code and employment: do you think you have been discriminated against or harassed at work?
- Who is considered an “employee” under the Code?
- What if I am on probation at work?
- What kinds of questions can I be asked during a job interview?
- What can happen if I file a human rights application against my employer?
- If I am a unionized employee, do I have to use the grievance process before I file a human rights application?
- How much medical information do I have to give my employer when I am asking for a disability-related accommodation?
- My employer wants me to go to an independent medical examiner before I am allowed to return to work. Do I have to go?
- Does my employer have to let me take time off to pray? And do they have to pay me for that time?
- If I require physical accommodation, does my employer have to provide different (sometimes referred to as “light”) duties in my own job or can they make me take another job?
- My employer says it’s too expensive to physically remodel the office space to accommodate my disability. How much is too much?
- Can I be fired because I miss time at work because of depression?
- My boss said I can’t speak my language during my lunch hour and that I have to speak English. Can he/she do that?
- My boss harasses me all the time and is very rude, but I don’t think it’s related to a human rights issue. Is there anything I can do?
Human rights & harassment based on sex or gender
- Can I be fired for being pregnant?
- My boss treats the women in our organization really differently – he doesn’t sexually harass us, but he makes really offensive comments about women – is that a human rights issue?
- My supervisor keeps asking me out for dinner and asking a lot about my personal life and looking at me intently. What should I do?
This is general information only. It is not legal advice about your situation.
The Code’s protection from discrimination in employment is very broad. It doesn’t matter if you are temporary, part-time, casual, a temporary agency worker, contract worker, independent contractor, domestic worker or even a volunteer. You shouldn’t be discriminated against or harassed when you are working. Employers cannot avoid their human rights obligations by calling you self-employed. The Code covers people who may not be considered “employees” under other laws, such as the Employment Standards Act.
The Code’s protection from discrimination covers all stages of the employment relationship including recruitment and hiring, working conditions, promotions and layoffs or termination of employment.
For more information, read our “Employment” page.
If you have questions about issues not covered by the Human Rights Code, such as breaks and unpaid wages, please visit the Ministry of Labour’s website.
Employees are also protected from discrimination or termination during a probationary period. The Code may also require an employer to adjust your job duties to accommodate your special needs, if those needs are tied to a right covered by the Code. These special needs might relate to a disability or because you are a single parent. If, for example, you have a hearing disability, the employer must provide you with the equipment that you need.
Employers should only ask you questions that directly relate to the requirements of the job and relevant experience. Questions that ask about your family status or country of origin should be avoided, such as:
- what language you were brought up speaking
- where you obtained your language skills
- your birth-place
- the nationality of your ancestors
- whether you have a disability
- whether you have children or want to have children
- your sexual orientation, marital status, or childbearing plans.
If your employer takes action against you because you have filed a human rights application, you can file an additional claim against your employer to protect yourself. This is called a “reprisal” claim and it will be dealt with as part of your human rights application.
Reprisal is defined as acts or threats that are intended to punish an individual who has reported discrimination or harassment or who has refused to infringe the rights of another person.
If you are a union member, you should speak with your union representative to see if you can file a grievance before you file a human rights application. If you believe that the union is also discriminating against you, you can file a human rights application against the employer and the union. In some cases the Tribunal will allow parallel claims, in others it will defer the human rights application until the other matter, a grievance for instance, is complete.
It depends. If your employer wants you to share your medical information, they should ask for it in writing and only ask for information specific to your medical condition which requires an accommodation. The information should focus on the particular issues relating to your accommodation needs, such as how much time off of work you need, or your ability to perform certain job duties.
It depends on your situation. If your employer needs more medical information, you want to make sure it relates to your job and date of return, or your specific need for accommodation. Also see “How much medical information do I have to give my employer?”
Some questions and issues to consider:
- Has your employer told you that the medical information you gave is not enough?
- Does the information requested relate to specific concerns about your return to work date or what accommodations you need in terms of job function?
- Have you been given an opportunity to obtain further information from your own doctor?
Yes, you have the right to observe your religion, but the employer does not always have to pay your salary during that time – it depends on the specific circumstances. The employer has a duty to accommodate your religious beliefs as long as it does not substantially interfere with the operation of the business. See the Commission’s Human Rights at Work 2008.
It depends on your specific situation. Generally, the Code requires the employer to work with you (the employee) to find modified work within your current place of employment. Here is an excerpt from the Ontario Human Rights Commission’s website that is useful:
The right to be accommodated and the duties of the employer and union are now well-established in law. The principles are set out in detail in the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate and are summarized here.
Dignity: People must be accommodated in a way that most respects their dignity, including their privacy, confidentiality, comfort and autonomy.
Individualization: Everyone’s needs are unique and must be considered individually when an accommodation request is made. There is no one-size-fits all solution.
Inclusion: Full participation means barrier-free and inclusive design.
Please see the Commission’s Human Rights at Work, particularly the sections relating to accommodation.
Your employer has to concretely demonstrate “undue hardship” when saying they can’t afford to meet your needs. Undue hardship means that the cost of accommodation (accurately assessed and proven) must be high enough that it would significantly interfere with ability of your employer, landlord or service provider to operate its business. There are only three factors set out in the Code that are taken into consideration when determining undue hardship:
- Cost (of modifying the workplace)
- Outside sources of funding (taking into account possible outside sources of funding)
- Health and safety requirements
Your employer is legally obligated to accommodate your disability to the point of “undue hardship.” Undue hardship means that the cost (that must be accurately set out and proven) to accommodate must be high enough that it would significantly interfere with the employer’s business.
You will have to cooperate with the employer by providing timely medical information relating to your absence, possible return to work and any accommodation that you are requesting, based on an opinion of a medical professional. Every case is different.
No. Although language is not specifically identified in the Human Rights Code, a requirement that you not speak in your first language in the workplace may infringe your rights under the Code. The Tribunal has found that not letting someone speak their language can be an indicator of discrimination based, for example, race, ethnicity or place of origin.
Harassment that is not covered under Ontario’s Human Rights Code
The Occupational Health and Safety Act has regulations related to workplace violence and harassment. See the Ministry of Labour’s web site.
There are many work-related problems that are not related to the Human Rights Code. The differential treatment that an employee has received must be related to one or more of the grounds of discrimination found in the Code. There must be a connection or link between the treatment and the Code ground. For instance, if an employee has a disability and the boss is rude but is also rude to everyone else in the workplace, the rudeness may not be seen to be connected to the employee's disability. This is because the employee with a disability is not receiving differential treatment and the employee may not be able to prove a human rights claim.
No. You cannot be fired or demoted because you are or may become pregnant. An employer must not ask you any questions relating to pregnancy during a job interview. See: Pregnancy information on the Commission's web site.
Yes. The ground of “sex” covers this type of harassment. If he is treating you differently simply because you are women, this is covered by the Code. Your boss may also be responsible for the way other employees behave. You may have heard him or other say things like “lighten up, can’t you take a joke? We’re just kidding around.” This is a common response and not one that is acceptable.
This could be sexual harassment. There are several things you could consider:
- Talk to a co-worker you trust, or if there is a senior manager that you trust, or there may be a human resources person in your office you could talk to
- Speak directly to your supervisor and tell him or her that his comments are making you feel uncomfortable and you would like him or her to stop
- Keep notes of the types of comments and situations that are making you uncomfortable
- Keep notes about his or her response, and the response of senior management
- Call the Human Rights Legal Support Centre for help