Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.
As the Centre for Addiction and Mental Health (CAMH) has noted, the “COVID-19 pandemic has sparked a rise in stigma and discrimination against people who have the virus; people from countries where the virus originated or are considered hot zones; people who have travelled recently; or even those who it is believed have come in contact with someone who has the virus.”
When people face discrimination because of this stigma, what recourse can they hope for in Ontario’s human rights law? The Ontario Human Rights Commission has taken the position that the “Code ground of disability is engaged in relation to COVID-19, as it covers medical conditions or perceived medical conditions that carry significant social stigma.” This means that an employer who fires an employee because the employee is diagnosed with COVID-19 may be held responsible for human rights violations. Further, under the Code, discrimination based on perception of disability is prohibited. So, if an employer believes the employee may have COVID-19, they may also be held responsible for human rights violations.
These grounds for discrimination will hold true for all areas covered by the Code. For example, a landlord that evicts a tenant because the tenant has, or is perceived to have, COVID-19 could be found liable for the discrimination.
In a case working its way through the British Columbia Human Rights Tribunal, a harm reduction worker in the Vancouver Downtown Eastside and Surrey was evicted due to her landlord’s concern that she had been exposed to COVID-19 because of her work. The landlord argued that her claim should be dismissed because COVID-19 is not a physical disability under the Code and the claim therefore had no prospect of success.
The Tribunal refused to dismiss the complaint because the stigma of COVID-19 is such that even being perceived to have it should be protected under the ground of physical disability. The Tribunal reasoned that “this aspect of the complaint is about the alleged stigma that attaches to Covid-19, quite apart from the virus’ effects on a person who has it. In my view, the issue raised by this aspect of the complaint falls squarely within the ambit of perceived physical disability.”
Once a complainant establishes that they have been the subject of discrimination due to having, or being perceived to have, COVID-19, the burden will shift to respondents to justify the conduct for legitimate health and safety reasons and to show why they could not accommodate the complainant. General concerns about the virus will not be enough to justify discrimination. In the BC case, the Tribunal found the landlord’s arguments regarding his “genuine worries” about health to be insufficient without detailed information about his specific vulnerabilities, his understanding about COVID-19 at the time, his genuine concerns, what information he sought from the tenant, and what options he considered before eviction.
It remains to be seen how much latitude human rights tribunals will grant those who discriminate based on “genuine worries” about the virus. But, if the case from BC is any indication, those who have faced discrimination based on COVID-19 stigma need not assume that concerns related to the virus will always prevail over the right to be free from discrimination.
If you have questions or concerns about the implications of COVID-19 on your employment, please call 613-567-2901 or email [email protected]. If you are a member of a union, please contact them directly for assistance in dealing with your workplace issue.