Background on Equity, Human Rights & Inclusion
The underlying principles of human rights, anti-racism, equity and access are clear and became an integral part of most workplaces in the 90’s. However, the interpretation and application of the laws are far more complex as these principles are intertwined through all three levels of government. This section reviews the historical roots of the applicable legislation; explains over-arching federal and provincial jurisdictions; illustrates how some of these principles have been applied; and, outlines provincial legislation pertaining to access of persons with disabilities.
The Federal Perspective
The Constitution Act, 1982 is Canada’s supreme law. That Act substantially amended the provisions of the British North America Act (BNA) of 1867, the Canadian Bill of Rights and Freedoms of 1960, and various other constitutional provisions. The new Act consolidated the key aspects of these legislative requirements ensuring that the primary terms of the constitution cannot be unilaterally changed by any single level of government, and recognizing aboriginal and treaty rights of first nations people.
The most dramatic change was the incorporation of the Canadian Charter of Rights and Freedoms into the Constitution. In 1985, the 1981 proposed “Non-discrimination Rights” were superseded by Section 15 of the Charter, known as the “Equality Rights” section of the Act which states, in part:
15. (1) [Equality before and under law and equal protection and benefit of law] Every individual is equal under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) [Affirmative action programs] Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
In essence, Section 15 of the Charter imposes on the courts, the task of scrutinizing inequalities to ensure that they are based on justifiable differences. If inequities are not justifiable, courts must render the law or practice to be against the Constitution and strike it down.
1984 Royal Commission Report on Equality in Employment is considered the federal watershed in recognizing that certain sectors of Canadian society have been disadvantaged in employment. The Commission received 274 written submissions, hundreds of letters, and held 137 meetings in 17 cities across Canada. Pursuant to
this report, the federal government enacted the Federal Employment Equity Act (1986) which regulates federal agencies and those with whom the federal government does business, and attempts to ensure equity in employment.
The Ontario Perspective
Each province has responded to human rights issues in its own way. In 1994 Anti-discrimination legislation was enacted with the intention of addressing social inequities. In the 1950’s, the Fair Employment Act and the Fair Accommodation Act continued that process. These two Acts were precursors to the Ontario Human Rights Commission.
Ontario enacted its first comprehensive human rights legislation in 1962 – the Ontario Human Rights Code. Subsequent to 1962, the Code was amended numerous times, and in 1981 a new Code was enacted; the Human Rights Code, 1981. In 1984, 1986 and 1990 it was amended with provisions which conform to the Constitution.
The preamble to the Human Rights Code, 1981 sets out its principles, as follows:
WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;
AND WHEREAS it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of 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 able to contribute fully to the development and well-being of the community and the Province;
Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario enacts as follows:
Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap…
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 offences, marital status, family status or handicap.
Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap…
In the area of employment, the Code is intended to promote equal opportunity, regardless of ancestry, country of origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status, or disability. It is based on the principle that employment opportunities should be based on merit rather than criteria unrelated to job performance. It sets out the framework for workplaces that are free from discrimination and harassment.
The Ontario Human Rights Commission addresses complaints from Ontarians who believe that they have suffered discrimination at work, in housing or in services such as restaurants, hotels and hospitals; or believe they have experienced physical, verbal or sexual harassment.
Complaints that have merit, and fall within the jurisdiction of the Human Rights Commission rather than another law, are forwarded to a Human Rights Officer for investigation. Depending on the circumstances, a Human Rights Commissioner, and/or a Board of Inquiry may become involved.
If the Board of Inquiry decides in the complainant’s favour, the company or individual found to have committed an act of harassment or discrimination can be ordered to pay the complainant for losses or force a change in the company’s discriminatory policies/practices. Decisions of the Board of Inquiry may be appealed to the Federal Court of Appeal.
The Ontario Human Rights Commission is currently undergoing some very controversial changes.
It is prudent for managers to be familiar with: the Employment Standards Act, the Pay Equity Act, and the Occupational Health and Safety Act as these laws also impact on equity in the workplace. The first of these laws, which deals with working conditions, was passed in 1968 and took effect in 1969. It has received numerous revisions since that time. The Pay Equity Act was passed in 1987 and came into force in 1988. This Act reviews compensation. The Occupational Health and Safety Act, which sets out joint responsibility for identifying and reducing workplace hazards, was enacted in 1979. It too has been amended numerous times.
Bill 79, “An Act to provide for Employment Equity for Aboriginal People, People with Disabilities, Members of Racial Minorities and Women”, received royal assent 14 December 1993, after approximately three years of consultation. Some Ontarians viewed the Employment Equity Act as an important landmark in provincial employment history, as it was geared to identify and overcome barriers for members of designated groups, thereby facilitating equity in the workplace.
However, in the Speech from the Throne on 27 September 1995, the Ontario Government made the following declaration:
To restore fairness in hiring, in this session the legislature will be asked to repeal legislated quotas, including the Employment Equity Act. To help employers maintain discrimination-free workplaces, the new government will implement a non-legislative equal opportunity plan that supports education and training, the elimination of barriers to equal opportunity, and sharing expertise and experience among workplace partners.
In the longer term, your government will reform the Ontario Human Rights Commission to ensure the Commission fulfils its mandate to help victims of discrimination effectively and efficiently.
On 11 October 1995, the government introduced Bill 8 – an Act to repeal job quotas and to restore merit-based employment practices in Ontario (also known as the Job Quotas Act, 1995). This Bill states, in part:
1. (1) The Employment Equity Act, 1993 is repealed.
Backgrounder on the Ontarians with Disabilities Act (ODA)
According to the City of Toronto’s Public Health Access & Equity team, Cultural Diversity refers to the unique characteristics that all of us possess; they distinguish people as individuals and identify them as belonging to a group or groups.
Diversity transcends the concepts of gender, age, sexuality (e.g. sexual orientation, gender identity, etc.), racialized groups, citizenship status, socioeconomic status, class, ethnicity, mental and physical abilities, faith/religion and languages.
For example: Cultural diversity is fluid and dynamic. Each one of us may possess different sets of characteristics throughout our life span and the meanings or significance of these characteristics are dependent on such things as the historical, social, cultural, economic and political contexts that we live in. (Note: Adapted from City of Toronto Public Health “Diversity Flower” framework).
The significance of this broader, cultural perspective of diversity is that it captures the needs of persons with varying and wide ranging disabilities and the spirit and intent of the Ontarians with Disabilities Act (ODA) as well as the Accessibility of Ontarians with Disabilities Act (AODA).
The ODA introduced the concept of making Ontario a more accessible province for all Ontarians by requiring governmental organizations and specific agencies to develop plans to identify barriers, ways to remove those barriers and to ensure new barriers were not established.
The AODA has gone several steps further by bringing the public sector, private sector and the community together to establish standards by which Ontarians can ensure that persons with disabilities have the capacity to participate fully in society. The first of those standards has been developed and work will begin on the next standard shortly.
The Standards are