Employers have a new tool to help them meet Ontario Human Rights Code obligations

Juliette Nicolet, Director of Policy, Education, Monitoring and Outreach at the Ontario Human Rights Commission, spoke to EMC members about the Human Rights Based Approach Framework in a presentation facilitated by Leah Nacua, EMC’s Manufacturing Consortium Manager for the GTA.

Developed by the Ontario Human Rights Commission, the Human Rights Based Approach (HRBA) Framework supports duty holders such as employers in designing and developing policies and programs that meet Ontario Human Rights Code obligations. The Framework promotes planning in a way that mitigates discrimination and disproportionate impacts on Code-protected groups. The HBRA Framework is a free web-based tool released in October 2023, and is available to the public here.

Key takeaways from the presentation:

Why human rights should be important to employers in Ontario Human rights are more than a nice-to-have. Human rights should be thought of as part of the social infrastructure that business needs to function. If you don't protect human rights, things start to fall apart very quickly. From an economic perspective, human rights law is part of what drives the economy, because Ontario's appeal for investment and as a relocation site for employment is partly due to the human rights culture in this province. Highly skilled, highly qualified people from all over the world come to Ontario because they know that they're going to be able to worship in peace. They know that they're going to be able to live their lives in relative comfort and safety, in part because of our respect for human rights.

Employers and the Ontario Human Rights Code Ontario’s Human Rights Code (the Code) gives everyone equal rights and opportunities without discrimination. Under the Code, organizations are obligated to work proactively to identify and remedy disproportionate impacts. The Code applies in the employment setting, including employees that work from home, so employers are duty-bound not to discriminate.

Grounds upon which it is prohibited to discriminate The Code covers 17 grounds where discrimination is prohibited, including race, gender, disability, sexual orientation, gender expression, and association (such as membership in a union). The aim of the code is to

• Protect the dignity and worth of each person
• Ensure equal rights and opportunities
• Create a climate of respect and mutual understanding
• Ensure that everyone can take part fully in society

Why the Human Rights Based Approach Framework was created The Framework was created to ensure that human rights considerations aren’t added as an afterthought to policies such as human resources policies in the workplace. The HRBA Framework helps policy-makers take the right steps to make sure that they are covering their bases and complying with their obligations. The HRBA Framework helps users understand how to develop and deliver human rights-focused, inclusive, equitable, accessible and responsive policy, program, procedure, and service initiatives. While the HRBA Framework supports organizations in meeting their human rights obligations, it does not replace receiving legal advice where necessary.

In Canada and in Ontario, the Human Rights Code is the first law The Human Rights Code has primacy over all other pieces of legislation, including the Employment Standards Act, the Education Act, and other legislation. From a legal perspective, human rights concerns should be the first thing that policy-makers build in.

In human rights law, only impact matters – not intent Unlike criminal law where intent matters, in human rights law only impact matters. If the impact is discriminatory, then the Code has been violated. It doesn't matter if you “didn't mean to.” ** The HRBA Framework covers 7 stages** To help policy-makers use a step-by-step approach, 7 stages are included in the HRBA Framework. Questions and actions are provided in each stage to help build policies that do not discriminate. Engagement is integral to the process.

• Stage 1 – Identifying the human rights context and implications of your initiative
• Stage 2 – Conducting research and analysis that considers human rights obligations
• Stage 3 – Working with impacted communities to develop an engagement process that works for everyone
• Stage 4 – Proposing options and recommendations.
• Stage 5 – Seeking approvals
• Stage 6 – Upholding human rights in program delivery and implementation (the rollout)
• Stage 7 – Using monitoring and evaluation frameworks to assess the impacts of the initiative on human rights

Paying attention to people who are historically and disproportionately impacted by discrimination When proposing options and making recommendations, it’s important to make sure that the options being chosen take into account concerns, insights, comments and recommendations brought forward by people or groups representing a human rights interest.

Mitigating risk with documentation Documentation is vital to demonstrate how decisions were made, to exercise due diligence, and show that all things were considered in making a fully informed proposal. Having a documented path goes a long way in demonstrating that you take your human rights obligations seriously and that you have given due consideration to all of the elements that you have to under the law, in a human resources and employment context.

Progressive realization, not perfection Constant improvement is the goal. There’s no expectation that a new policy will be perfect from the start. The expectation is that you are evaluating, monitoring, and making improvements as you move along.

Additional resources are available on the OHRC website The OHRC website has a series of resources for issues that employers deal with such as ableism and discrimination based on disability, the duty to accommodate, preventing discrimination based on mental health disabilities and addictions, racism and racial discrimination, competing human rights, and collecting human rights data.

These policies and guidelines along with many others are available here.

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