Although many people feel like everything about our lives has changed in the last few weeks, it may be reassuring to know that some things remain unchanged. Even in the face of what may be the most significant socioeconomic and health challenge of our lifetime, the basic human rights protections in our law make it illegal to discriminate against anyone on the basis of their race, gender, age, family status, disability or other grounds protected by the Ontario Human Rights Code, the Canadian Human Rights Act, and the Charter of Rights and Freedoms.
Even in an emergency, the basic rules that determine how we treat each other continue to be a powerful tool to protect against discrimination.
Human rights protections require a case by case analysis that looks at the specific facts of each individual in a given situation.
On March 13, 2020, the Ontario Human Rights Commission announced that it considered COVID-19 to be disability protected by the Human Rights Code. While there is no way to be certain whether a Court or Tribunal will agree, we believe that COVID-19 would likely be found to be a disability protected by the law.
Negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.
These protections also shield others who may face increased risk in the face of the pandemic. People who live with medical conditions that make them more vulnerable to the impact of COVID-19 may be entitled to accommodations to allow them to protect themselves, where medically required. This obligation may also extend to those who live with and care for others who are at an increased risk.
If you believe that you have COVID-19 and you have experienced negative treatment or impacts that can’t be justified by official public health advice, or you were refused a reasonable accommodation even partly due to your health status, you may have a claim under the applicable human rights legislation.
The closure of schools and daycares as a result of COVID-19 has presented challenges for working parents and caregivers. Some are in jobs where they must remain in the workplace (and cannot care for their children during work hours), while others are working from home (but have to supervise, feed and deal with disruptions from their children). The physical distancing/self-isolation directives., emergency orders banning gatherings of 5 people or more, and the risks that COVID-19 poses to immune-suppressed and elderly people and those with certain underlying health conditions limit the options normally available to parents to find alternate childcare arrangements.
The law protects people from negative treatment on the basis of their family status, including their role as a caregiver. Where an employee has caregiving obligations, and they are unable to make appropriate arrangements, despite their best efforts, employers must accommodate employees with family care responsibilities to the point of undue hardship. In order to establish a need for accommodation parents are required to take steps to try to find alternate child care arrangements if possible.
If you think that you have been treated unfairly because of your caregiving responsibilities arising in the context of the pandemic, despite having tried to make other arrangements for your loved ones, you may be protected by the law.
Race and Intersectionality
Sadly, the COVID-19 pandemic has exposed other discriminatory conduct within our society and workplaces. Members of Asian communities in Canada and around the world are facing racism and discrimination as a result of misinformation and stereotypes about the communities perceived to be associated with the virus. Fear or confusion about this virus should never lead to stereotyping or negative comments or actions towards people because of their race, ethnicity, or place of origin.
Employees should also be aware of situations where two or more of their personal characteristics intersect in a way that gives rise to discrimination – for example, where an employee who is a member of the Asian community and is displaying flu-like symptoms is treated more severely than other symptomatic employees in their workplace.
If you have experienced racialized discrimination in the context of the COVID-19 pandemic, you may be protected by human rights legislation.
Over the last few weeks, we have seen incredible acts of heroism, leadership and sacrifice. We have also seen the fear and anger bred by the pandemic target, marginalize and discriminate against individuals in our communities.
The law is one of the tools that we have given ourselves to fight back against fear, hatred and the worst instincts that can emerge in hard times, to prevent discrimination and to ensure human dignity.