Category Archives: Duty to Accommodate

Dealing with Mental Health and Addiction – A New Ontario Human Rights Commission Policy

On the heels of its recently updated policy on Gender Identity/Gender Expression, the Ontario Human Rights Commission (OHRC) has now released a new policy to provide guidance on how to define, assess, handle and resolve human rights issues related to mental health and addiction disabilities. The full Policy can be found at:

http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions

The OHRC’s new Policy builds on its Policy and Guidelines on Disability and the Duty to Accommodate, applying the same principles to people with mental health issues or addictions. The new Policy recognizes that people with mental health disabilities are entitled to the same level of protection as people with physical disabilities, and is reflective of the prevalence of mental illness and addiction in Canada today. The OHRC cites research estimating that one in five Canadians will experience a mental illness or addiction.

Given these statistics, most employers will need to provide assistance or accommodation to an employee dealing with mental illness or addiction. A full review of the OHRC’s new Policy is therefore recommended. The Policy provides insight into recognizing mental health and addiction issues and provides examples of appropriate accommodation in such circumstances.

Also important for employers to note is the emphasis placed on employer responsibility for the overall work environment. The new Policy makes clear that the obligations of employers do not end with their own accommodation efforts, but rather extend to maintaining a workplace that is free from discrimination and harassment of individuals with a mental health disability or addiction. There is also a clear duty on employers not to condone or further a discriminatory act that has taken place, and to properly respond when others engage in discriminatory behaviour.

Issues related to mental health and addiction disabilities can be difficult to navigate. Should you require assistance as you encounter these issues, please contact a member of our group.

 

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Filed under Accessibility, Duty to Accommodate, Employment, Human Rights, Workplace Policies

New Gender Identity/Gender Expression Policy from the Ontario Human Rights Commission

The Ontario Human Rights Commission (OHRC) has released a new policy on the rights of trans and gender non-conforming individuals. The Policy on preventing discrimination because of gender identity and gender expression can be read in its entirety at:

http://www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression

The Policy represents a complete revision and update to the OHRC’s original policy on gender identity first published in 2000. Since that time, the Ontario Human Rights Code has been updated to enshrine gender identity and gender expression as Code-protected grounds. The OHRC’s new Policy reflects this change and provides guidance to organizations seeking to meet their legal responsibilities under the Code. The Policy also promotes understanding and awareness about trans people and the bias and prejudice they often face.

The Policy reminds organizations that trans people and other gender non-conforming individuals are protected from discrimination and harassment because of gender identity and gender expression in the following five areas:

  • when receiving goods, services and using facilities;
  • when occupying housing accommodation;
  • when entering into a contract with others;
  • in employment; and
  • when joining or belonging to a union, professional association or other vocational association.

The Policy provides examples as to how gender identity and gender expression may come into play in these five areas, and solutions that meet an organization’s responsibilities under the Code. For example, access to change rooms/washrooms, the provision of shelter services, the implementation of dress codes and proper hiring procedures are all topics that are considered. A best practices checklist is also provided.

Issues related to gender identity and gender expression can be complex. We recommend a full review of the OHRC’s new Policy in order to gain an understanding of how these issues may impact your organization.

 

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Filed under Duty to Accommodate, Employment, Human Rights, Workplace Policies

Time to Remove “Canadian Experience Required” From Your Help Wanted Ads

Help Wanted: Canadian Experience Required.

Statistics Canada reports that recent immigrants to Canada face disproportionately high rates of unemployment and underemployment and has identified a lack of Canadian experience as one of the most common barriers for newcomers looking for meaningful employment in Canada. Yet, job ads often require job applicants to have “Canadian experience” in order to apply.

This summer, the Ontario Human Rights Commission (“OHRC”) launched its Policy on Removing the “Canadian experience” Barrier (the “Policy”).  The OHRC Policy recognizes that the requirement for recent immigrants to Canada to have “Canadian experience” represents a significant barrier for these individuals to find work that corresponds to their education, skills, and experience. As the Policy notes, newcomers to Canada “cannot get a job without Canadian experience and they cannot get Canadian experience without a job.” The OHRC has taken the position that a strict requirement for Canadian experience is prima facie discrimination, and can only be used where that experience can be shown to be a bona fide occupational requirement.

The Ontario Humans Rights Code (the “Code”) states that “[e]very 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, gender identity, gender expression, age, record of offences, marital status, family status or disability”. The OHRC Policy states that requiring Canadian work experience is a form of indirect discrimination as it adversely affects people who were not born and raised in Canada.

To show that Canadian experience is a bona fide occupational requirement, the employer must meet the following three-part test:

  1. the requirement was adopted for a purpose or goal that is rationally connected to the function being performed;
  2. the standard was adopted in good faith in the belief that it is needed to fulfill the purpose or goal; and
  3. the standard is reasonably necessary to accomplish its purpose or goal because it is impossible to accommodate the claimant without undue hardship to the employer.

The OHRC identified a number of best practices, including that employers should:

  • Frame job qualifications or criteria in terms of competencies and job-related knowledge and skills, rather than using “Canadian experience” which is an arbitrary term with no clear definition.
  • Use competency-based methods to assess an applicant’s skill and ability to do the job.
  • Provide newcomers with on-the-job training, supports and resources that will enable them to close “skills gaps” (i.e. acquire any skills or knowledge they may be lacking).
  • Give an applicant the opportunity to prove his/her qualifications through paid internships, short contracts or positions with probationary periods.

The Policy helps to highlight the disconnect between Canada’s general immigration policy of bringing high-skilled immigrants to work in Canada and the barriers in place with respect to high skilled-work once these individuals arrive in Canada.

While not law, the OHRC’s policies are given deference by courts and tribunals, and employers would be well advised to review their internal hiring processes in light of this Policy.

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Filed under Duty to Accommodate, Employment, Human Rights, Immigration, Workplace Policies