AbleToTrain by Willing & Able

Preventing Discrimination

Employers, housing providers, service providers, and other responsible parties covered by the Code bear the ultimate responsibility for maintaining an environment free of discrimination and harassment. It is intolerable to choose to remain ignorant of discrimination or harassment directed at a person with a mental health disability or addiction, regardless of whether a human rights claim has been filed.

Organizations and institutions operating in Ontario are legally required to take preventative and corrective action in the event of Code violations. Employers, landlords, service providers, and other accountable parties must ensure that their workplaces are accessible, inclusive, discrimination- and harassment-free, and respectful of human rights. When people with mental health or addiction disabilities are encouraged and empowered to participate at all levels of society, everyone benefits.

Employers, housing providers, service providers, and other responsible parties violate the Code when they violate it directly or indirectly, intentionally or unintentionally, or when they authorize, condone, or adopt anti-Code behavior.

Section 46.3 of the Code holds a corporation, trade union or occupational association, unincorporated association, or employers’ organization liable for discrimination committed by employees or agents in the course of their employment, including acts or omissions. This concept is referred to as vicarious liability. Simply put, the OHRC believes that an organization is liable for discrimination committed by its employees or agents, regardless of whether the organization had knowledge of, participation in, or control over the actions.

Staff at a group home, for example, refuse to investigate a tenant’s allegation that another tenant is discriminating against her on the basis of her sex and mental health disability. The organization that operates the group home would be liable for condoning discrimination and failing to respond to this allegation.

Vicarious liability does not apply to violations of the Code’s anti-harassment provisions. However, because a poisoned environment is a form of discrimination, vicarious liability is restored when harassment contributes to or results in a poisoned environment. Additionally, the “organic theory of corporate liability” may apply in these instances.

The employee’s decisions, acts, or omissions will expose the organization to liability in harassment cases where:

  • The employee who is a member of the “directing mind” commits harassment or other inappropriate behavior that violates the Code, or

  • The employee who is a member of the “directing mind” fails to respond appropriately to harassment or inappropriate behavior about which he or she is aware, or should reasonably be aware.

Managers and central decision-makers in an organization are generally considered to be a part of the “directing mind.” In the workplace, employees with only supervisory authority may also be considered members of the “directing mind” if they act as representatives of the organization or are perceived to act in that capacity. Even non-supervisors may be included in the “directing mind” if they have de facto supervisory authority or significant responsibility for the guidance of others. For instance, a bargaining unit member who is a lead hand may be considered to be a part of the organization’s “directing mind.”

Additionally, there is a clear human rights obligation not to condone or advance a discriminatory act that has already occurred. This would merely prolong or perpetuate the life of the initial discriminatory act. This obligation extends to individuals who, while not the primary actors, are drawn into a discriminatory situation through contractual or other relationships. [284]

Employers, housing providers, service providers, and other responsible parties may be held liable for failing to respond to the discriminatory or harassing behavior of third parties (such as service users or customers, contractors, etc.).

Multiple organizations may be held jointly liable for discrimination if they all contribute to it. For instance, a union may be held jointly liable with an employer if it contributed to discriminatory workplace policies or actions – for example, by negotiating discriminatory terms in a collective bargaining agreement, obstructing an appropriate accommodation, or failing to address a harassing or poisonous workplace environment.

Human rights decision-makers frequently hold organizations liable for discrimination and harassment and assess damages based on the organization’s failure to respond appropriately.

In one instance, a man suffering from bipolar disorder claimed that he was subjected to cruel taunts and negative treatment at work as a result of his mental health disability and the perception that he was gay. He claimed that coworkers called him homophobic slurs, teased him for taking disability medication, referred to him as “crazy,” and openly accused him of wanting to molest children. He brought these concerns to his employer’s attention, but nothing changed. The HRTO determined that the employer violated the man’s right to be free of discrimination on the basis of disability and sexual orientation by failing to investigate and address his harassment complaints. [287]

While an organization may respond appropriately to complaints about specific instances of discrimination or harassment, if the underlying problem remains unresolved, the organization may be found to have acted inappropriately. There could be a toxic environment or an organizational culture that condones discrimination despite the fact that individual perpetrators are punished. In these instances, organizations must take additional steps, such as training and education, to address the issue more effectively.

Consider the following when determining whether an organization has met its obligation to respond to a human rights claim:

At the time, procedures for dealing with discrimination and harassment were in place.

  • the organization’s prompt response to the complaint

  • how seriously the grievance was taken

  • resources committed to resolving the complaint

  • whether the organization maintained a safe environment for the complainant

  • how effectively the action taken was communicated to the complainant.

The following steps outline several strategies for organizations to prevent and eliminate discrimination against people with mental health disabilities or addictions. Organizations should develop strategies to prevent discrimination on all Code grounds, but with a particular emphasis on individuals with psychosocial disabilities.

A comprehensive strategy for preventing and resolving human rights violations should include the following:

  • a strategy for preventing, reviewing, and removing barriers

  • policies against harassment and discrimination

  • a program of education and training

  • a procedure for internal complaints

  • a policy and procedure for accommodating guests.