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proscribed grounds of discrimination

June 29, 2010

CHAPTER H-6 PART I — PROSCRIBED DISCRIMINATION
Canadian Human Rights Act

General
Proscribed grounds of discrimination
3. (1) For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination.

Idem
(2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. [1976-77, c.33, s.3; 1980-81-82-83, c.143, s.2.]

Orders in respect of discriminatory practices
4. A discriminatory practice, as described in sections 5 to 14, may be the subject of a complaint under Part III and anyone found to be engaging or to have engaged in a discriminatory practice may be made subject to an order as provided in sections 53 and 54. [1976-77, c.33, s.4; 1980-81-82-83, c.143, s.2.]

Discriminatory Practices – Denial of good, service, facility or accommodation
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination. [1976-77, c.33, s.5.]

Denial of commercial premises or residential accommodation
6. It is a discriminatory practice in the provision of commercial premises or residential accommodation
(a) to deny occupancy of such premises or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination. [1976-77, c.33, s.6.]

Employment
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. [1976-77, c.33, s.7.]

Employment applications, advertisements
8. It is a discriminatory practice
(a) to use or circulate any form of application for employment, or
(b) in connection with employment or prospective employment, to publish any advertisement or to make any written or oral inquiry that expresses or implies any limitation, specification or preference based on a prohibited ground of discrimination. [1976-77, c.33, s.8.]

Employee organizations
9. (1) It is a discriminatory practice for an employee organization on a prohibited ground of discrimination
(a) to exclude an individual from full membership in the organization;
(b) to expel or suspend a member of the organization; or
(c) to limit, segregate, classify or otherwise act in relation to an individual in a way that would deprive the individual of employment opportunities, or limit employment opportunities or otherwise adversely affect the status of the individual, where the individual is a member of the organization or where any of the obligations of the organization pursuant to a collective agreement relate to the individual.

Exception
(2) Notwithstanding subsection (1), it is not a discriminatory practice for an employee organization to exclude, expel or suspend an individual from membership in the organization because that individual has reached the normal age of retirement for individuals working in positions similar to the position of that individual.

Definition of “employee organization”
(3) For the purposes of this section and sections 10 and 60, “employee organization” includes a trade union or other organization of employees or local thereof, the purposes of which include the negotiation, on behalf of employees, of the terms and conditions of employment with employers. [1976-77, c.33, s.9; 1980-81-82-83, c.143, s.4.]

Discriminatory policy or practice
10. It is a discriminatory practice for an employer, employee organization or organization of employers
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. [1976-77, c.33, s.10; 1980-81-82-83, c.143, s.5.]

Equal wages
11. (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.

Assessment of value of work
(2) In assessing the value of work performed by employees employed in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed.

Separate establishments
(3) Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be the same establishment.

Different wages based on prescribed reasonable factors
(4) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be a reasonable factor that justifies the difference.

Idem
(5) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages.

No reduction of wages
(6) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section.

Definition of “wages”
(7) For the purposes of this section, “wages” means any form of remuneration payable for work performed by an individual and includes
(a) salaries, commissions, vacation pay, dismissal wages and bonuses;
(b) reasonable value for board, rent, housing and lodging;
(c) payments in kind;
(d) employer contributions to pension funds or plans, long- term disability plans and all forms of health insurance plans; and
(e) any other advantage received directly or indirectly from the individual’s employer. [1976-77, c.33, s.11.]

Publication of discriminatory notices, etc.
12. It is a discriminatory practice to publish or display before the public or to cause to be published or displayed before the public any notice, sign, symbol, emblem or other representation that
(a) expresses or implies discrimination or an intention to discriminate, or
(b) incites or is calculated to incite others to discriminate if the discrimination expressed or implied, intended to be expressed or implied or incited or calculated to be incited would otherwise, if engaged in, be a discriminatory practice described in any of sections 5 to 11 or in section 14. [1976-77, c.33, s.12; 1980-81-82-83, c.143, s.6.]

Hate messages
13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

Exception
(2) Subsection (1) does not apply in respect of any matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

Interpretation
(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter. [1976-77, c.33, s.13.]

Harassment
14. (1) It is a discriminatory practice,
(a) in the provision of goods, services, facilities or accommodation customarily available to the general public,
(b) in the provision of commercial premises or residential accommodation, or
(c) in matters related to employment, to harass an individual on a prohibited ground of discrimination.

Sexual harassment
(2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination. [1980-81-82-83, c.143, s.7.]

Exceptions
15. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
(b) employment of an individual is refused or terminated because that individual has not reached the minimum age, or has reached the maximum age, that applies to that employment by law or under regulations, which may be made by the Governor in Council for the purposes of this paragraph;
(c) an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual;
(d) the terms and conditions of any pension fund or plan established by an employer provide for the compulsory vesting or locking-in of pension contributions at a fixed or determinable age in accordance with sections 17 and 18 of the Pension Benefits Standards Act, 1985;
(e) an individual is discriminated against on a prohibited ground of discrimination in a manner that is prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be reasonable;
(f) an employer grants a female employee special leave or benefits in connection with pregnancy or child-birth or grants employees special leave or benefits to assist them in the care of their children; or
(g) in the circumstances described in section 5 or 6, an individual is denied any goods, services, facilities or accommodation or access thereto or occupancy of any commercial premises or residential accommodation or is a victim of any adverse differentiation and there is bona fide justification for that denial or differentiation. [R.S., 1985, c.H-6, s.15; R.S., 1985, c.32 (2nd Supp.), s.41.]

Special programs
16. (1) It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be or are based on or related to the race, national or ethnic origin, colour, religion, age, sex, marital status, family status or disability of members of that group, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.

Advice and assistance
(2) The Canadian Human Rights Commission may
(a) make general recommendations concerning desirable objectives for special programs, plans or arrangements referred to in subsection (1); and
(b) on application, give such advice and assistance with respect to the adoption or carrying out of a special program, plan or arrangement referred to in subsection (1) as will serve to aid in the achievement of the objectives the program, plan or arrangement was designed to achieve. [1976-77, c.33, s.15; 1980-81-82-83, c.143, s.8.]

Plans to meet the needs of disabled persons
17. (1) A person who proposes to implement a plan for adapting any services, facilities, premises, equipment or operations to meet the needs of persons arising from a disability may apply to the Canadian Human Rights Commission for approval of the plan.

Approval of plan
(2) The Commission may, by written notice to a person making an application pursuant to subsection (1), approve the plan if the Commission is satisfied that the plan is appropriate for meeting the needs of persons arising from a disability.

Effect of approval of accommodation plan
(3) Where any services, facilities, premises, equipment or operations are adapted in accordance with a plan approved under subsection (2), matters for which the plan provides do not constitute any basis for a complaint under Part III regarding discrimination based on any disability in respect of which the plan was approved.

Notice when application not granted
(4) When the Commission decides not to grant an application made pursuant to subsection (1), it shall send a written notice of its decision to the applicant setting out the reasons for its decision. [1980-81-82-83, c.143, s.9.]

Rescinding approval of plan
18. (1) If the Canadian Human Rights Commission is satisfied that, by reason of any change in circumstances, a plan approved under subsection 17(2) has ceased to be appropriate for meeting the needs of persons arising from a disability, the Commission may, by written notice to the person who proposes to carry out or maintains the adaptation contemplated by the plan or any part thereof, rescind its approval of the plan to the extent required by the change in circumstances.

Effect where approval rescinded
(2) To the extent to which approval of a plan is rescinded under subsection (1), subsection 17(3) does not apply to the plan if the discriminatory practice to which the complaint relates is subsequent to the rescission of the approval.

Statement of reasons for rescinding approval
(3) Where the Commission rescinds approval of a plan pursuant to subsection (1), it shall include in the notice referred to therein a statement of its reasons therefor. [1980-81-82-83, c.143, s.9.]

Opportunity to make representations
19. (1) Before making its decision on an application or rescinding approval of a plan pursuant to section 17 or 18, the Canadian Human Rights Commission shall afford each person directly concerned with the matter an opportunity to make representations with respect thereto.

Restriction on deeming plan inappropriate
(2) For the purposes of sections 17 and 18, a plan shall not, by reason only that it does not conform to any standards prescribed pursuant to section 24, be deemed to be inappropriate for meeting the needs of persons arising from disability. [1980-81-82-83, c.143, s.9.]

Certain provisions not discriminatory
20. A provision of a pension or insurance fund or plan that preserves rights acquired prior to March 1, 1978 or that preserves pension or other benefits accrued prior to that time does not constitute the basis for a complaint under Part III that an employer is engaging or has engaged in a discriminatory practice. [1976-77, c.33, s.16.]

Funds and plans
21. The establishment of separate pension funds or plans for different groups of employees does not constitute the basis for a complaint under Part III that an employer is engaging or has engaged in a discriminatory practice if the employees are not grouped in those funds or plans according to a prohibited ground of discrimination. [1976-77, c.33, s.17.]

Regulations
22. The Governor in Council may, by regulation, prescribe the provisions of any pension or insurance fund or plan, in addition to those provisions described in sections 20 and 21, that do not constitute the basis for a complaint under Part III that an employer is engaging or has engaged in a discriminatory practice. [1976-77, c.33, s.18.]

Regulations
23. The Governor in Council may make regulations respecting the terms and conditions to be included in or applicable to any contract, licence or grant made or granted by Her Majesty in right of Canada providing for
(a) the prohibition of discriminatory practices described in sections 5 to 14; and
(b) the resolution, by the procedure set out in Part III, of complaints of discriminatory practices contrary to such terms and conditions. [1976-77, c.33, s.19; 1980-81-82-83, c.143, s.10.]

Accessibility standards
24. (1) The Governor in Council may, for the benefit of persons having any disability, make regulations prescribing standards of accessibility to services, facilities or premises.
Effect of meeting accessibility standards
(2) Where standards prescribed pursuant to subsection (1) are met in providing access to any services, facilities or premises, a matter of access thereto does not constitute any basis for a complaint under Part III regarding discrimination based on any disability in respect of which the standards are prescribed.

Publication of proposed regulations
(3) Subject to subsection (4), a copy of each regulation that the Governor in Council proposes to make pursuant to this section shall be published in the Canada Gazette and a reasonable opportunity shall be afforded to interested persons to make representations with respect thereto.

Exception
(4) Subsection (3) does not apply in respect of a proposed regulation that has been published pursuant to that subsection, whether or not it has been amended as a result of representations made pursuant to that subsection.
Discriminatory practice not constituted by variance from standards
(5) Nothing shall, by virtue only of its being at variance with any standards prescribed pursuant to subsection (1), be deemed to constitute a discriminatory practice. [1980-81-82-83, c.143, s.11.]

Definitions
25. In this Act, “conviction for which a pardon has been granted” means a conviction of an individual for an offence in respect of which a pardon has been granted by any authority under law and, if granted under the Criminal Records Act, not revoked; “disability” means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug. [1976-77, c.33, s.20; 1980-81-82-83, c.143, s.12.] SOURCE: efc.ca web-site

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