‘Genetic characteristics’ as a prohibited ground of discrimination in Ontario?

November 21, 2013 Employer Advisor, McCarthy Tétrault LLP Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Recruiting and Hiring

A recent private member’s bill introduced by a Liberal MPP in the Ontario legislature would add “genetic characteristics” as a prohibited ground of discrimination to the Ontario Human Rights Code (the Code). As currently drafted, “genetic characteristics” would be defined as “genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease”.

The definition is extremely broad and could lead to some odd and frivolous human rights complaints. For example, an applicant for employment could conceivably claim that he/she was denied a job because his/her curly hair was a genetic trait. Or an employee could claim harassment based on a co-worker’s alleged “vexatious comment or conduct” about the employee’s hair colour.

To avoid this type of result, the bill will have to be studied and, hopefully, amended in committee so that its application is narrowed. One suggestion may very well be that the definition of “genetic characteristics” should be limited to genetic traits known to increase the risk of developing a disease (i.e., the second part of the current definition).

The bill also protects individuals from discrimination if they refuse to undergo or disclose the results of a genetic test. It seems that a much stronger case can be made for this type of provision to be included in the Code instead of a blanket prohibition on discrimination in employment based on “genetic characteristics” (or, at least, how it is currently defined). Indeed, this seems to be the real intent of the bill, given the MPP’s statement during first reading:

In essence, this bill would prevent employers and insurance companies from discriminating against Ontarians on the basis of genetic testing.

This will be an interesting development to watch. I expect that, because it is not a government bill, it will either gain little traction or be altered in the committee process.

Daniel Pugen
Ontario Employer Advisor
Published with permission from McCarthy Tétrault LLP

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Employer Advisor, McCarthy Tétrault LLP

Employment and labour lawyers at McCarthy Tétrault LLP

McCarthy Tétrault through their Employer Advisor blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more

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discrimination, employment law, Genetic characteristics, genetic traits, harassment, human rights complaints, Ontario Human Rights Code, prohibited ground of discrimination

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