NOTE: The information listed below is legal information and does not constitute legal advice. If you have or believe to have been discriminated against or harassed, please contact a lawyer, a legal professional or the applicable Human Rights Tribunal in your Province or Territory.
The purpose of this section is to further understand not only how disability is defined in Human Rights law but also understand some of the forms of conduct that are strictly prohibited.
Read each section and answer the questions posed.
Human Rights law protects individuals from discrimination based on disability. Meaning, that individuals with a disability have the right to be treated fairly, equally and have the right to access employment, schools, housing, and services, among other things.
What is a Disability?
The definition of disability encompasses any physical, mental or developmental disability, learning disability, a mental disorder, or any injury or disability where benefits are claimed under the Workplace Safety and Insurance Act, 1997. The term disability covers any disability that was present at birth, developed over time or is a result of an accident. It further covers any anticipated disability, where an individual perceives that they will eventually develop a disability and would be in need of accommodation.
Jane has a rare disorder that will eventually cause her to become blind. Is this a disability?
Yes. Jane has an anticipated disability as Jane knows that she will eventually become blind, which is a physical disability.
Discrimination based on Disability
Discrimination based on disability can take on many different forms, for example:
- Direct: when an individual with a disability is directly excluded from housing or employment; or
- Indirectly: when an organization or an individual sets out conditions that are discriminatory and they are enforced.
A private school instructs their admissions department to not recruit students with disabilities that need large accommodation requirements. The admissions department follows these instructions. Is this discrimination based on disability?
Yes, this would be an indirect form of discrimination based on disability. The students with disabilities that require the most accommodation are specifically excluded from attending the school. Therefore, the private school is setting out conditions that are discriminatory, as all individuals with a disability have a right to be equally treated and access schools.
Harassment is defined as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known as unwelcome.” This definition has two components: a) that the harasser knows how his or her behaviour is being received and, b) that the reasonable person would view the behaviour as harassment.
Harassment is typically protected under each provinces Human Rights Act. It should be noted that harassment does occur even if the individual experiencing it does not verbally object.
An individual may experience harassment based on a person’s disability, past or perceived disability, a person’s accommodation needs, the treatment they are receiving or the side-effects of treatment. Harassment can include:
- Slurs, name-calling;
- Graffiti. For example, unwanted comics about an individual’s disability;
- Comments that ridicule people because of disability-related characteristics;
- Singling out a person for teasing or jokes related to disability;
- Circulating offensive material about a person with a disability at an organization.
A landlord engages in a course of vexatious comments against a resident with an intellectual disability. The landlord makes comments and slurs regarding their disability, in addition to, sending crude drawings of the resident to all other residents of the building. Is this harassment?
Yes, this is harassment.The landlord’s comments and drawings were vexatious and based on the tenant’s disability. The landlord ought to have known that the comments, slurs, and drawings were unwelcome. Furthermore, a reasonable person in the tenant’s situation would view the landlord’s comments as unwelcome and a form of harassment.
The atmosphere of a workplace has been held as a condition of employment. However, a poisoned environment can occur in housing and other services as well. A poisoned environment occurs when unwelcome conduct or comments occur in the workplace or organization that can or do result in a hostile or oppressive atmosphere for an individual(s) protected under a Human Rights Act.
A poisoned work environment is based on the nature of the comments or conduct and their impact and not on the number of times the comments or conduct may have occurred. This results in individuals being subjected to terms and conditions that are different from individuals that are not subjected to the comments or conduct. A poisoned environment can be created by your peers, supervisors, or tenants to name a few.
Employee X suffers from chronic pain and asks for time off for medical reasons. The supervisor refused to give them the proper paperwork and spreads a rumour and is heard telling other employees that they are faking, and are just a lazy individual. The employees laugh and spread what the supervisor said around the office. Meanwhile, employee Y requests time off, which is accepted right away. Employee Y is not subject to the comments and conduct that Employee X is subject to. Does this create a poisoned work environment based on disability?
Yes. The conduct and comments made by the employee’s supervisor can reasonably be said to be unwelcome and creates a hostile and oppressive atmosphere for the employee with a disability. It also creates different terms and conditions for the employee with a disability and his or her ability to take time off.