What is wrong with the Ontario Human Rights Code

In a previous post I mentioned the case of the York University student who asked to be excused from interacting with women for religious reasons, and the back-and-forth between the professor and the university administration over whether this was reasonable accommodation. My main focus was taking issue with the people who are simplifying the story into a cartoonish tale of plucky resistance to misguided power structures, and are targeting York’s administration as the villains. As I pointed out, York university administration had to rule as they did, by Ontario law – which means the problem is with Ontario law. So what exactly is the law, and what exactly is the problem with it?

The law in question is Ontario’s Human Rights Code. Originally enacted in , it was a landmark in Canadian law. Prior to its passage, there had been laws against this or that kind of discrimination in this or that situation. The Code brought it all together, codified it clearly, and set up both the Ontario Human Rights Commission (OHRC) and the Human Rights Tribunal of Ontario (HRTO) to monitor violations and hear complaints. Their precise roles have changed over time, but today the way it works is that the OHRC guides and informs public policy, and occasionally acts like the “lawyer” helping you bring your case to the HRTO, while the HRTO hears complaints about violations and issues rulings.

You probably won’t be surprised to hear that there is a sustained attack by the right-wing on the Code, the Commission, and the Tribunal. To them, the whole thing stinks of “leftism” or “liberalism”, which is anathema to their ideologies. It just seems tp irk them that there’s a law that actually protects minorities and the underprivileged from exploitation and abuse from the privileged majority. It’s similar to the way that things like racism are distasteful to good people, you know, except for the fact that it’s totally evil. They love to refer to it as “quasi-judicial”, as if that were an epithet. (It’s technically true, in that neither the Commission nor the Tribunal are actually parts of the judiciary, and thus, require judicial review, but their rulings do carry legal weight.) Their favourite tactic is to distort and misrepresent a ruling made by the Commission or the Tribunal, then mock it as “political correctness gone out of control”. The actual facts of the case are almost never presented truthfully – I’m trying to find a polite way to call them shit-eating liars, but diplomatic phrasing escapes me at the moment. (Want to see bias in action? Dig the Wikipedia page on the HRTO, which has ~4,000 words… only 90 of which actually describe the Tribunal and what it does. All of the rest are devoted to “controversial decisions” (almost all of which were written by one user, whose history also shows other dodgy edits to articles on things like “affirmative action”).)

I am a strong supporter of the Code and the intent behind it. In fact, I am frequently irked when I see idiot atheists criticizing the Code, the Commission, or the Tribunal, usually after they’ve fallen for the bullshit story they’ve read about one of their rulings in the National Post or something. Meanwhile, outside of Idiot Land, the Code is an important tool in the fight for atheist rights in Ontario. Just a couple months ago, Rene Chouinard got them to officially state that atheism is not a religion, but it is a “creed”, which is a protected category under the Code. (To clarify, the Code explicitly lists several things that are protected against being discriminated against, including race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability, plus a few other things like criminal history in conditional cases. Gender identity and expression are the most recent additions, from . You may think it’s silly to have to list all these things explicitly, but don’t doubt for a second that there are bozo judges who will straight up ignore obvious and unnecessary discrimination if the specific form of discrimination isn’t explicitly mentioned. That’s actually what lawyers tried to do in the Chouinard case: they argued that atheism isn’t a religion, and it isn’t explicitly listed, therefore, no problem screwing atheists! Chouinard’s victory, and it was an important one, was in getting explicit acknowledgement that atheism isn’t a religion, but that it is a creed, and thus protected.)

So I like the code, and I like the work that the OHRC and HRTO are doing. And I think that any atheist not exploring their rectum with their forehead, and anyone serious about humanistic principles of equality and freedom, has to agree that it’s a wonderful and powerful system, that is at least intended to do a lot of good.

But they’re not perfect.

Here’s the relevant problem in the York University case:

One of the things the Code requires (see §11 “Constructive discrimination”) is what is commonly referred to as a “duty to accommodate”. It means that any employer, landlord, etc. must not refuse a request for accommodation related to being a member of a group that falls under one of the protected categories (race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability). In simple terms, if one of your employees is in a wheelchair (which puts him in a group that falls under the “disability” protected class), and ze wants a ramp (which causes “exclusion” or “restriction” of that group), you have to put a ramp in (with the exceptions I’ll mention in a moment). Or, if you have a company where you want to do a daily prayer before getting down to business, you can’t (because it would constitute a “preference” for a group – whichever religion it is – that is in a protected class – religion – and, at the same time, it would cause “exclusion” of other groups that fall under protected classes – other religions, or atheists).

Now, obviously, there have to be limits on what kinds of accommodation are required. The Code lists a bunch of specific limits, but it also gives the general rule (§11.1.a) that it is okay to not accommodate a preference or requirement of one of the protected classes if the rejection is “reasonable and in good faith, in the circumstances”. So far so good.

But then it goes on in the very next bit (§11.2):

The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

In plain English, unless the Code explicitly says a certain accommodation is unnecessary, there are only two ways you can justify refusing it. One for concerns of health and safety, which is reasonable. And the only other reason you can legitimately offer for refusing to accommodate?

Cost.

And that is the cause of all the problems here.

There are no items in the Code that specifically apply to the York University case. And there are obviously no health or safety concerns that make not working with women dangerous – I’m sure the women would have already been checked for cooties. The only other possibly justification for refusing the guy’s request is cost… and there’s just no argument there either.

So you see, Professor Grayson had to accommodate the student’s request. The university administration was absolutely right to insist on it. Grayson straight up broke the law by refusing to accommodate.

And, hopefully, you can also see where the real problem here is. It’s not York University. It’s the Ontario Human Rights Code. Specifically, it is the fact that the law mandates… that all requirements and preferences that are typical for a group that falls under one of the protected categories, when expressed by a member of that group, must be accommodated… unless there are health and safety concerns… or… cost issues (or unless there is an explicit exemption elsewhere in the Code).

I don’t know about you, but I am really uncomfortable about what it says about our priorities, when:

  1. one of the ways you can simply ignore the needs of a member of a protected group (like a person with a disability, or someone with the “wrong” sexual orientation) is simply if it just costs too much; and
  2. the only way you can refuse to accommodate a request that is typical of a protected group (like a religious preference), other than if it is actually a threat to health and safety, is if it costs too much – doesn’t matter if the request is disgusting, or if it leads to dehumanization or marginalization of other people.

Health and safety is certainly a viable justification for putting limits on accommodation. Cost… much less so… but… okay, sure. But seriously, other than health and safety, nothing else besides cost? That’s fucking ridiculous.

What we need to do is get new wording in the code to allow refusal to accommodate when the “preferences” or “requirements” are… frankly… fucking offensive. Such as in the case of the York student’s request. Obviously we shouldn’t word it like that, but I’m not even going to try to begin to suggest the proper legalese. The idea we want to capture, though, is that accommodation should not be mandated when the accommodation itself requires discrimination against or marginalization of one of the protected classes. Yes, I know it’s not that simple, because if it were worded just like that it would probably make it possible for an employer to refuse a request for a separate women’s bathroom. Obviously we’d need to be very careful messing with this. I’m not a lawyer. But I think I’ve clarified the idea well enough that a lawyer could work with something from there. One thing we certainly don’t want to do is use the justifications that people like Grayson have been using: that the accommodation is simply offensive to the sensibility of the one required to provide it – or “I find this request offensive, therefore I won’t comply”. I think anyone can see how stupid that justification is. Grayson is dead wrong on that count.

Once again, let me make it clear that I am not advocating scrapping or even massively overhauling the Ontario Human Rights Code. It’s good as it is… but it’s not perfect… and I think one of the things that would make it better would be provide more acceptable justifications for refusing to accommodate. We need to be cautious, but I think it can be done in a way that continues to make it mandatory to accommodate reasonable needs and requests, while proving more and better justifications for refusing certain accommodations that are (socially and culturally) dangerous or evil, other than just cost.

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What is wrong with the Ontario Human Rights Code by Indi in the Wired is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

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