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There’s a tidal shift happening in human rights – Part II are employers ready for Bill 164?

Bill 164Human rights legislation exists to protect individuals against discrimination based on things they do not have the power to change. In an effort to improve existing protections for individuals, Liberal MPP, Nathalie Desrosiers, introduced Bill 164 on October 4, 2017 to expand the current prohibited grounds of discrimination under the Ontario Human Rights Code (the “Code”).

If passed, the Bill would result in amending the Code to include the following as prohibited grounds of discrimination: social condition, police records, genetic characteristics and immigration status.

Social condition

“Social Condition” is defined by the Bill as a social or economic disadvantage which arises from the following:

  • Employment status;
  • Source/level of income;
  • Housing status, including homelessness;
  • Level of education;
  • Or any other circumstance that is similar to those mentioned above.

The inclusion of this prohibited ground to the Code would protect some of the most vulnerable Ontarians, who do not have a fixed address or stable employment, against discrimination with regards to services and employment.

Police records

The new Bill defines “police record” as any record of a person’s contact with police, including charges and convictions, regardless of a record of suspension. The proposed amendment to the Code would expand protections for those who have had any sort of contact with police including unsubstantiated allegations.

Currently, the Code’s protection is only offered to people who have received a pardon following a conviction. If Bill 164 is passed, employers will no longer be permitted to discriminate against those who have been charged or acquitted of an offence. There would, however, be an exception to this rule: Employers would only be allowed to discriminate based on a potential employee’s police record if it was a bona fide occupational requirement (ex: a position which requires the employee to work with “vulnerable people”, such as children).

Genetic characteristics

This change to the Code aims to prohibit employers, service providers and landlords from discriminating on the basis of one’s genetic characteristics. As a result, a person would be entitled to equal treatment in the event that either 1) they refused to undergo a genetic test, 2) disclose said results, or 3) allow disclosure of said results.

If passed, insurance companies would no longer be permitted to consider a person’s genetics when assessing their requests for benefit coverage.

Immigration status

The new Bill aims to expand the current protection offered by the Code in relation to citizenship, race and place of origin to add immigration status, which will essentially eliminate an employer’s ability to discriminate on the basis of how long someone has been in the country. This addition would eliminate the ability to discriminate in employment on the basis of lack of Canadian experience.

The PH perspective: What this all means for employers

Internal Policy Review: Many company policies, in particular those relating to harassment and hiring, list the protected grounds of discrimination/ harassment. Employers should be prepared to update their policies to include reference to ALL prohibited grounds including those which may be added by Bill 164.

Hiring Process and Documentation Review: If your current application forms have questions during a hiring interview relate to any of the proposed new protections, (for example questions relating to Canadian work experience, criminal record of offences, home address, level of education, current place of employment or current income), those documents will have to be amended accordingly.

Insurance Policy Review: Employers should be communicating with their insurers to ensure that the insurer reviews and reverses any decisions it has made to deny benefit coverage to employees on the basis of genetic characteristics. Additionally, employers should ensure that any insurance benefit booklets describing coverage for employees do not reference exclusions in coverage on the basis of genetic characteristics.

Bill 164 has received second reading and has been sent to the Standing Committee on Regulations and Private Bills. We will continue to monitor its progress.

By Patrizia Piccolo, Partner and Co-Founder

*special thanks to Sabrina Morcos, Piccolo Heath LLP intern, for her assistance with this article

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Piccolo Heath LLP

Prominent Canadian lawyers Patrizia Piccolo and Jennifer Heath have come together as Piccolo Heath LLP, Canada’s newest employment law firm. With more than 30 years combined expertise, the firm was founded with the purpose of delivering outstanding legal counsel and dynamic, client-focused service. Piccolo Heath LLP is focused on guiding clients through the legal landscape to determine the best solutions to their unique issues. The firm is well-versed in current employment-related case law and statutes, but is also highly sensitive to the practical impact of the law on both employers and employees. Read more.
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