Can an employer refuse to hire a candidate based on their accent, first and last name, or skin colour? According to the Ontario Human Rights Commission (the “Commission”), the answer is no, as it would constitute caste-based discrimination. Caste refers to a hierarchy of social class or standing, rooted in an individual or group’s ancestry and underlying notions of purity and pollution.
Recently, the Commission issued a policy position regarding the issue of discrimination based on caste (the “Policy Position”). The purpose of the Policy Position is to raise awareness of people’s rights and legal obligations to prevent and address caste-based discrimination under the Ontario Human Rights Code (the “Code”).
In particular, the Commission confirmed that caste-based discrimination is a form of intersectional discrimination, and thus a violation of the Code entitling the victim to compensation.
Background on human rights
Every jurisdiction has its own human rights legislation. They are largely the same, and they all prohibit employers from unlawfully discriminating against their workforce on the basis of specified grounds. In Ontario, those grounds are:
- race,
- ancestry,
- place of origin,
- colour,
- ethnic origin,
- genetic characteristics,
- creed (religion),
- citizenship,
- creed,
- sex,
- sexual orientation,
- gender identity or expression,
- age,
- record of offences,
- marital status,
- family status,
- disability,
- receipt of public assistance, or
- a conviction for which a pardon has been granted or a record suspended.
This right to equality spans across all aspects of the employment relationship, including hiring, workplace environments, dress codes, promotions, and dismissals. Any workplace rule or decision that adversely impacts an employee due to a prohibited ground is a breach of their rights. Importantly, a breach can occur even if the prohibited ground is one small part of the reason for the decision.
OHRC’s definition of caste
The Policy Position defines a caste system as “a social stratification or hierarchy that determines a person or group’s social class or standing, rooted in their ancestry and underlying notions of ‘purity’ and ‘pollution.’ It is a traditional practice based in the political, social, cultural and economic structures of some cultural or religious communities and the societies in which it is practised.”
The Policy Position further clarifies that while a person’s caste may not be visible, “certain markers may be used to identify and discriminate based on caste,” such as first and last names, customs and ceremonies, belief systems, accent, and ancestry, among others. In addition, “[s]kin colour or “colourism” can also be a marker of social status that overlaps or intersects with other markers.” Certain groups “may be deemed “untouchable” and assigned a position at the bottom of the social hierarchy including local Indigenous peoples. A person’s caste is seen as immutable and determined at birth.”
Intersectional discrimination and code-protected grounds
The Code-protected grounds reflect the personal characteristics based on which an individual could be discriminated against in Ontario, and thereby seek remedies for the breach of their human rights.
The Policy Position explains that although “caste” itself is not a Code-protected ground, it can arise from the intersection of various existing Code-protected grounds, such as ancestry, creed, colour, race, ethnic origin, place of origin and family status. The Commission comments that as with many of these personal characteristics which are Code-protected grounds, “caste” is immutable and predetermined at the time of a person’s birth. Accordingly, the Commission’s view is that caste-based distinctions should be seen as a form of discrimination that could potentially violate the Code.
Employers’ obligations relating to caste-based discrimination
The Policy Position outlines employers’ obligations relating to caste-based discrimination. In particular, the Policy Position states that employers have various legal obligations under the Code, such as ensuring the workplace is “free from discrimination and harassment, bullying or a poisoned environment based on caste and the related grounds,” the duty to “respond to and investigate claims of caste-based discrimination, and remedy situations when discrimination is found”. Moreover, the Policy Position states that “[s]chool boards have additional specific obligations to protect students and other members of the school community under Ontario’s Education Act and Provincial Code of Conduct for the education sector.
Advice for employers
The Policy Position advises employers to “have a human rights complaint procedure in place” and notes that employers “could also recognize caste-based discrimination in a corporate human rights policy.” In addition, the Policy Position states that “[t]raining and public awareness for staff and service recipients, such as students, may also be necessary to help prevent and address misinformation, prejudice and other barriers that contribute to caste-based discrimination, especially when caste-based discrimination is or ought to be a known problem within the organization or sector.”
Key takeaways
The Commission’s Policy Position is a step forward toward acknowledging the broadening of the scope of the Code’s protections. Although “caste” is not currently identified as a Code-protected ground, the Commission’s recognition of intersectional discrimination is an indication of the Code being interpreted more broadly to protect individuals from being discriminated against, at least based on immutable personal characteristics.
Although the Commission’s Policy Position itself is not binding at law, it can be helpful when compliance issues are being considered and determined. This means that employers would be wise to revisit their workplace policies and practices, in order to ensure that they are taking a broader approach towards being proactive and not engaging in any sorts of discriminatory practices. Employers should also be mindful of their obligations to investigate claims of caste-based discrimination and to remedy any situations when discrimination is found.
By Nadia Zaman
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