Ontario Human Rights Code
The Ontario Human Rights Code (Code) and the Accessibility for Ontarians with Disabilities Act (AODA) echo the values of midwifery in Ontario as they promote equality of opportunity, respect for individual dignity and autonomy and support for independence and self-determination. They do this by giving Ontarians a right to be treated equitably in contracts, services, and employment (among other things). The AOM’s template human rights policy (refer to Midwives Safety section) supports practices to comply with their legal obligations.
The Code has been interpreted as applying to current or potential partners, independent contractors, employees, and students. The courts have taken the position that the Code should be interpreted broadly and should protect anyone in a work-like context, including partners, independent contractors, students and volunteers.
The Code prohibits discrimination or harassment based on any of the following grounds (including characteristics the person had in the past and discrimination or harassment related to affiliations with people who have these characteristics) :
- Religion or creed
- Race or colour; ancestry; ethnic origin (including linguistic background and accent)
- Place of origin and citizenship
- Physical or mental disability (minor or major, visible or invisible, permanent, temporary or episodic, real or perceived, and including dependence on alcohol or drugs)
- Age (for work, over 18)
- Sex (including pregnancy and breastfeeding)
- Gender identity and gender expression
- Sexual orientation
- Marital status (e.g., single, married, common-law, divorced) and family status (e.g., childless, elder parents, single parent)
- Pardoned convictions under federal law; and convictions under provincial law
The prohibition of discrimination includes things that are intentional and unintentional, obviously discriminatory or seemingly neutral. It also applies throughout the worker relationship, from setting job requirements to recruitment, from day-today performance to termination. “Discrimination” is not defined under the Code, but the Ontario Human Rights Commission indicates that it can include negative attitudes, stereotypes, systemic discrimination, reprisal and threat of reprisal, harassment, poisoned work environments, failure to be inclusive, and racial profiling (see the Commission’s guide to human rights at work). The following are examples of conduct that may be considered discriminatory:
- Asking a candidate about their medical conditions, familial responsibilities or plans to have children during an interview.
- Asking a midwife to dress more “femininely” because her style of dress is suggestive of her sexual orientation or gender identity.
- “Teasing” a student about their age, religious practice or ethnicity.
- Stating that only Canadian experience will be considered when posting a position for a practice group administrator or considering an applicant’s accent when evaluating interviews.
- Choosing not to hire or contract with a highly qualified candidate because they are a single parent.
- Refusing to renew a contract or terminating a contract with a midwife because they have developed a medical condition (a disability) or are pregnant.
In some instances, an employer may be permitted to engage in what looks like discrimination if in reality they are seeking out employees that meet “bona fide occupational requirements.” For example, an organization that serves youth may wish to hire someone younger than 25. If this is considered a true requirement of the job because of the nature of the work, it may not be discriminatory to exclude applicants due to their age. The analysis of bona fide job requirements is done on a case-by-case basis and midwives should seek legal advice before making any employment-related decisions that may be seen as contrary to the Code.
Duty to Accommodate
The Code imposes a “duty to accommodate,” which means that practice groups may need to make adjustments to the way they operate, up to the point of “undue hardship.” These needs arise most frequently in relation to disability, religion and family status, but may involve any of the listed personal characteristics. Reasonable accommodations may cause inconvenience or hardship to the practice group. As long as that hardship is not “undue,” the accommodation is required under the Code.
In deciding whether a hardship is undue, the Human Rights Tribunal of Ontario would consider the cost (including the availability of outside funding for the accommodation), the effect on the practice’s viability and the health and safety of workers and clients. Other factors, such as convenience, the effect on profits or surpluses or the effect on productivity are not included in this analysis. In making these decisions, the practice may request reasonably necessary information about the individual’s needs, such as a letter from their doctor explaining their workplace limitations (not their medical condition). The practice group must keep all information and documentation confidential.
Here are some examples of how the duty to accommodate may arise in a midwifery practice and some of the factors that a practice group would need to think about:
- A midwife whose child has a significant medical condition asks the practice partners for two hours off call every Wednesday to attend weekly medical appointments. The practice considers how this will affect their ability to provide safe client care and provides the accommodation.
- A partner who develops arthritis continues to attend births and relies on the second midwife to assist with activities they find challenging. As their condition worsens, the practice must consider the effect of this accommodation on client care, the cost implications and the availability of alternative work, such as assisting with the practice’s management or providing pre- and postnatal care only (not intrapartum care).
- Because of a midwife’s religious beliefs, they request one day off call every week (Sabbath), instead of two weekends off call every month like the other midwives. The practice considers how this will affect their ability to provide safe client care.
The Code doesn’t explicitly tell practices what accommodations are required. Instead, practices should evaluate each available option to determine whether it can be implemented without undue hardship. Practices are required to go through a problem-solving process, cooperate with the worker and try to identify an accommodation that would work for all parties.
Because there is no clear line, the Human Rights Tribunal of Ontario may come to a different conclusion of what is required if a complaint were made. What may be required of a bigger midwifery practice may not be required of a smaller practice, because the standard of what is “undue” hardship may differ depending on the practice’s resources. This is why it is key that practice groups develop policies and procedures to prevent and respond to allegations of discrimination. Practices can also seek the assistance of a lawyer or AOM On Call (formerly the PLEASE line).
The Ontario Human Rights Commission’s policy and guidelines on disability and the duty to accommodate, along with their many other resources, are very helpful when considering accommodation questions.
The Code requires organizations to provide workplaces free of harassment based on one of the listed grounds. The Occupational Health and Safety Act prohibits all harassment and violence in the workplace, whether based on a personal characteristic or not. Practice groups are responsible for providing an environment that is free of harassment and violence.
The term “harassment” means engaging in a course of vexatious comment or action that is known, or should be known, to be unwelcome, such as words or actions that are offensive, embarrassing, humiliating, demeaning, or sexualized. It is still harassment if a person does not explicitly object or appears to be going along with it, and it can still be harassment if the comments were meant “as a joke.”
Both the Code and the Occupational Health and Safety Act prohibit reprisals or negative repercussions for people who raise human rights or health and safety issues. As a result, practices should seek legal advice before terminating or disciplining an employee who has raised such issues.
Practices and midwives should:
- Consider developing a policy on human rights based on the AOM’s template and the Ontario Human Rights Commission’s guidelines on developing human rights policies and procedures.
- Proactively look to remove barriers and create an inclusive workplace (see A Place for All, the Canadian Human Rights Commission's guide to creating an inclusive workplace.
- Review the AOM’s archived webinars on disability and human rights--coming soon to our online store!