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Discrimination and Harassment Prevention Policy

University Authority for the Discrimination and Harassment Prevention Policy

At Toronto Metropolitan University (the "University"), the Discrimination and Harassment Prevention Policy and Procedures fall within the portfolio of the Vice-President, Equity and Community Inclusion. Human Rights Services is comprised of the Discrimination and Harassment Prevention Officer, the Educational Equity Advisor, the Complaints Resolution Advisor and the Administrative Assistant.

The University's Discrimination Harassment Prevention Policy and Procedures and the Ontario Human Rights Code

The University's Discrimination and Harassment Prevention Policy and Procedures is informed and guided by the Ontario Human Rights Code. The Ontario Human Rights Code applies and prevails over all provincial legislation (with few exceptions), University policies and collective agreements.

This Policy, together with the Respectful Workplace Policy is also a means by which the University maintains a comprehensive harassment prevention policy and program as required by the Occupational Health and Safety Act

Discrimination & Harassment Prevention Policy

Introduction

The University is committed to fostering a collegial study and work milieu that is free of discrimination and harassment and one in which all individuals are treated with respect and dignity. Every member of the University Community has a right to equal treatment with respect to employment and with respect to the receipt of education services and related services and facilities without discrimination or harassment on the basis of the following grounds:

·         Race

·         Ancestry

·         Place of origin

·         Colour

·         Ethnic origin

·         Citizenship

·         Creed

·         Sex

·         Sexual orientation

·         Gender identity and Gender expression

·         Age

·         Record of offences*

·         Marital status

·         Family status

·         Disability

* The protection for record of offences applies only in the area of employment.

Throughout this Policy the above listed grounds will be referred to as the "prohibited grounds".

A right to freedom from discrimination and harassment is also infringed where someone is treated unequally because she/he is in a relationship, association or dealing with a person or persons identified by a prohibited ground of discrimination.

Discriminatory and harassing behaviours are offensive, degrading and illegal. Every member of the University Community is responsible for creating an environment which is free of discrimination and harassment. Individuals acting on their own and/or on behalf of the University and the University itself can be held responsible under this Policy and in law for discriminatory and harassing acts. Those found to have engaged in such conduct on the basis of a prohibited ground will be subject to discipline. Those found to have been harassed or discriminated against on the basis of a prohibited ground will be entitled to a remedy.

Guiding Principles

1.    The University's Discrimination and Harassment Prevention Policy and Procedures is informed and guided by the Ontario "Human Rights Code".

Discrimination and harassment as defined by the Ontario Human Rights Code are illegal and are behaviours which are considered incompatible with the standard of conduct required of a member of the University Community.

2.    Discrimination and harassment are in most cases an abuse of power.

The University recognizes that the purpose of human rights laws and policies is to assist members of groups that have been historically disadvantaged and disempowered in our society.

3.    All parties involved in a complaint must be treated fairly.

The University's Discrimination and Harassment Prevention Policy and Procedures are based on principles of fairness and due process for complainants and respondents. The University is committed to providing a complaints process that is fair, unbiased and facilitative for all parties.

4.    Freedom of expression is the cornerstone of education at the University, but like other Charter rights, it is not an absolute right.

The Canadian Charter of Rights and Freedoms guarantees "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." The rights and freedoms guaranteed in the Charter are "... subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Human rights, for example, may place limits on these freedoms.

5.    The University recognizes that discrimination and harassment are both human rights and health and safety matters which can have an impact on the physical and emotional well being of an individual and the overall health of the University.

Responsibility of the University

It is the responsibility of the University to exercise its authority to prevent discrimination and harassment, to penalize the repetition of discrimination and harassment, and to respond promptly to known or apparent incidents of discrimination and harassment, whether or not a complaint has been filed.

By law, the University and its senior administrators such as chairs, deans, directors, vice-presidents, the president, and others with supervisory responsibility have a legal responsibility to respond promptly to known or apparent incidents of discrimination and harassment, whether or not a complaint has been filed and to exercise authority to prevent and/or penalize the repetition of such behaviour.

Where it is found that a senior administrator or others with supervisory responsibility knew of an incident of discrimination or harassment and did not take any action to stop the behaviour, that senior administrator may be subject to penalties and remedies under this Policy and under the law.

To ensure that senior administrators understand and fulfil their special responsibilities vis a vis discrimination and harassment, including systemic discrimination, senior administrators are expected to attend human rights workshops for senior administrators. Further, in consultation with managers and supervisors, senior administrators are expected to arrange with Human Rights Services to provide human rights education and awareness sessions for employees and students in their respective departments.

Education

Prevention through education is a major goal of this Discrimination and Harassment Prevention Policy. The University is committed to promoting widespread understanding and discussion of human rights issues across the University for students, staff and faculty. Through Human Rights Services, the University will provide information about: discrimination (direct and systemic) and harassment; how to prevent discrimination and harassment; how to deal with discriminatory or harassing behaviours when they occur; and why these behaviours are so harmful to individuals and to the University.

The University's Human Rights Services

The University's Human Rights Services, administers and oversees the application of this policy and advises the University on human rights matters.

Confidentiality

The University recognizes the importance of confidentiality to anyone using Human Rights Services and will make every reasonable effort to balance confidentiality with the legal responsibility of the University.

University managers, supervisors and their support staff who, by virtue of their position, are privy to information or in possession of documentation pertaining to a complaint shall hold such information in strict confidence. This shall include refraining from discussions or releasing information in any form, beyond that required to fulfill the aims of this Policy and to manage the risk of harm to others, or in the accompanying procedures, or as required by law (1).

Discrimination

Discrimination under the Ontario Human Rights Code and under this Policy can take one of two forms - direct or systemic (constructive).

Direct Discrimination

Direct discrimination describes an act, behaviour or practice of treating a person unequally on the basis of any of the prohibited grounds. Direct discrimination may be overt and admitted or covert and denied.

Examples:

·        A manager only assigns special projects and developmental opportunities to the women without children and to the men in the department because she assumes that she will overburden those with family responsibilities. A class has been asked to organize into groups to work on an assignment. The groups will need to meet at some point over the week-end in order to complete the assignment on time. As Jake approaches a group of four students, one of the students he has worked with before stops him and says, "Our group is full." As Jake walks away, he overhears the student say to the others, "He's a nice guy but I've worked with him before. His religion interferes with when we'll be able to meet."

·         Rita has a learning disability and writes most of her tests in the Access Centre. All but one of her professors have been very accommodating. However, one of her professors has told Rita in the presence of some of her classmates that she objects to the "special treatment" Rita is receiving. The professor told Rita (and the classmates who were with Rita at the time) that she has an unfair advantage over her classmates. The professor has told Rita "I'm going to take all this special treatment into account when I calculate your final grade". She has also suggested to Rita that she consider community college "if you can't cut the mustard" at the University.

·         Professor X, originally from Trinidad, has been teaching at the University for a year. He's heard that one of his third year students (Student Y), a fairly good student and a popular student, has been telling his classmates and some professors that Professor x "can't teach" and "is incompetent". Students who were previously outgoing in class have become withdrawn and appear to defer to Student Y. Another student confides in Professor X that Student Y is circulating a petition demanding that Professor X be removed from all teaching duties and that his "off-shore" credentials be examined. Student Y has reportedly used racially offensive words to describe Professor X and has told some that "nobody from any banana republic will ever have anything to teach me. "

Systemic Discrimination

The second form of discrimination, referred to as "constructive discrimination" in the Ontario Human Rights Code, is most commonly known as systemic discrimination because it is discrimination inherent in, or the result of, the organization's informal or formal policies, practices or procedures.

Systemic discrimination occurs where a requirement, qualification or factor which, on its face, is not discriminatory on the basis of a prohibited ground but which results in the exclusion, restriction or preference of a group identified by a prohibited ground of discrimination.

Systemic discrimination is not found where the person or entity (an Office, a department, the University, etc.) responsible for the policy, practice or system is able to show that the requirement, qualification, or factor is reasonable and bona fide in the circumstances. Although individuals may be held responsible for discriminatory acts, in most systemic discrimination cases, the University will likely be identified as the entity responsible. A requirement, qualification or factor will not be found to be reasonable and bona fide unless the person or entity responsible for the policy, practice or system can demonstrate that the needs of the group of which the complainant is a member cannot be accommodated without undue hardship on the person or entity responsible for accommodating the needs. "Reasonable and bona fide" and "undue" hardship are defined in the "Definitions and Notes" at the end of this Policy.

Example:

An exam schedule which interferes with the religious holidays of a particular faith is one example of systemic discrimination. On its face, the setting of the exam schedule itself is not discriminatory. However, it is a factor which restricts the ability of the members of that religious group to attend the exam. In this situation, it may be possible to change the scheduled time of the exam to accommodate the students or to provide a separate time, close to the scheduled exam time, for students of that particular faith to write the exam.

Accommodation of Persons with Disabilities

The right to freedom from discrimination on the basis of a disability requires that the University provide the necessary accommodation to enable an employee with a disability to fulfill the essential job duties and to enable a student with a disability to utilize the University's services as long as the employee or student is capable of performing and fulfilling the essential job duties or the essential duties associated with utilizing the services, with or without accommodation, and as long as the accommodation does not pose undue hardship on the University, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. The needs of a person with a disability must be accommodated in a manner which most respects the person's dignity and which recognizes the privacy, confidentiality, comfort, autonomy, and self-esteem of persons with disabilities. The accommodation should maximize their integration and promote their full participation at the University. Please consult the University's Access Centre for information on the accommodations available for students with disabilities.

Harassment

Harassment is normally considered to be a course of unwanted remarks, behaviours, or communications in any form based on a prohibited ground of discrimination where the person responsible for the remarks, behaviours or communications knows or ought reasonably to know that these are unwelcome.

Example:

"Jokes", comments, or e-mail messages which demean and belittle an individual(s) and which are based on race, ethnic origin, religion, sex, gender, sexual orientation, disability, etc. may constitute harassment under this Policy.

One remark or one joke would not normally be considered "a course of conduct." However, persistent and frequent comments are not necessary for there to be a violation of this Policy. Depending on the impact of the comments or conduct on the individual(s), one instance may be sufficient to create a "poisoned environment" for a specific employee or student or group of employees or students.

Poisoned Environment

Where harassing or discriminatory behaviours are sufficiently severe and/or pervasive and cause significant and unreasonable interference to a person's study or work environment, they may be deemed as creating an intimidating, hostile and offensive work or study environment. A poisoned environment can interfere with and/or undermine work or academic performance and can cause emotional and psychological stress not experienced by other employees or students. As such, it results in unequal terms and conditions of employment or study and prevents or impairs full and equal enjoyment of employment or educational services, benefits, or opportunities. Although a person may not be the target of the behaviours, a person may feel the effects of certain harassing or discriminatory behaviours at their place of work or study.

Behaviours which allegedly create a hostile environment for work and/or study but which are not on the basis of a prohibited ground of discrimination do not fall within this Policy. They may fall within a collective agreement and/or some other complaint or resolution process at the University.

Example:

A poisoned environment may exist where an employee or student finds on display in a workplace or study area signs, pictures, graffiti, jokes, materials or images on computer screens which are belittling, derogatory or offensive toward any members of groups protected by this Policy.

Sexual Harassment, Solicitation and Reprisal

Sexual harassment is a course of unwanted remarks, behaviours, or communications of a sexually oriented nature and/or a course of unwanted remarks, behaviours or communications based on gender - where the person responsible for the remarks, behaviours or communications knows or ought reasonably to know that these are unwelcome. Sexual harassment may consist of unwanted attention of a sexually oriented nature such as personal questions about one's sex life, persistent requests for a "date", or unwelcome remarks about someone's hair, body shape, etc. Sexual harassment may also consist of unwelcome remarks based on gender which are not of a sexual nature but which are demeaning or degrading such as derogatory jokes or comments about women.

Sexual Solicitation and Reprisal

Every member of the University Community has a right to freedom from a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement, where that person knows or ought reasonably to know that such a solicitation or advance is unwelcome. Sexual solicitation or sexual advance includes an implied or expressed promise of reward for complying with a sexually oriented request made by a person in a position to confer, grant or deny a benefit or advancement. Every member of the University Community also has a right to be free from reprisal or threat of reprisal for rejecting a sexual solicitation or advance, where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement.

Examples:

·        If a supervisor or instructor suggests that she or he can improve the evaluation of an employee or student in exchange for sexual favours, this would constitute sexual harassment.

·         If an employee is able to demonstrate that his or her work hours were changed for the worse after refusing a supervisor's sexual advances or if a student is able to demonstrate that she or he received an inaccurate evaluation for refusing the sexual advances of an instructor or professor, this would constitute sexual harassment.

Freedom from Reprisal

Every member of the University Community has a right to claim and enforce his or her rights under this Policy, to provide evidence and to participate in proceedings under this Policy, and the right to refuse to act in violation of this Policy without reprisal or threat of reprisal.

Remedies and Penalties

The objective of a remedy in cases of discrimination and harassment is two-fold. It aims to remedy the situation to prevent the continuation or repetition of the conduct and it aims to restore the complainant to the position she or he would have been in had the discrimination or harassment not occurred. Any remedies and/or settlements of discrimination and harassment complaints will take into consideration and address the 'public interest' - that is, the interests of the University Community at large.

Following the principle of progressive discipline and the University's commitment to education, where there is a finding of discrimination or harassment, there are a range of remedies and/or penalties which may be imposed. These include, but are not restricted to one or more of the following:

·         A directive from the chair or director to the respondent to cease the behaviour, with failure to do so leading to further penalty.

·         A program of education for the respondent and/or the complainant and/or the department.

·         A verbal or written apology to the complainant.

·         Counselling for the respondent and/or the complainant.

·         Restricted access to a physical area of the University.

·         Suspension for a set time for students.

·         Suspension for a set time with or without pay for employees.

·         Dismissal/expulsion.

Policy Application

This Policy applies to all members of the University Community, to visitors, and to contractors. It shall be deemed to be a condition of every contract entered into by, or on behalf of, the University that those contracted with will comply with this Policy and with the Ontario Human Rights Code. Breach of this condition may result in cancellation of the contract. All visitors to the University campus must comply with this Policy. Failure to comply with this Policy will result in an appropriate remedy/penalty.

Policy Jurisdiction

Behaviours which constitute discrimination and harassment and which impact on the work and/or study environment of a member of the University Community are covered by this Policy whether or not they occur during normal working/school hours. As well, if conduct which constitutes discrimination or harassment occurs during activities off-campus such as work or academic related travel, campus-related social functions, and/or in the course of work or academic assignments or placements, such conduct may be covered by this policy.

Where it appears to Human Rights Services that the complaint is outside of this Policy's jurisdiction, or is one that could or should be more appropriately dealt with under another policy, act, or procedure, Human Rights Services may decide not to deal with the complaint and to refer the complainant to the appropriate office.

Academic Freedom

The University's Discrimination and Harassment Prevention Policy is not intended to inhibit academic freedom. It reminds all members of the University Community that, in exercising our freedoms, we all have a responsibility to respect the rights and freedoms of others, including the right to study and work in an environment which is free of discrimination and harassment. Please refer to note 8 in the "Definitions and Notes" section at the end of this Policy.

Time Period for Filing Complaints

A complainant must normally file a complaint of discrimination or harassment within twelve (12) months of the date of the alleged incident(s). The University recognizes that there may be extenuating circumstances that may prevent a formal complaint from being made within this time period. Please contact Human Rights Services if you believe you may need to file a complaint outside of the twelve (12) month time frame.

Right to Representation

At any interview or proceeding related to an informal complaint under this Policy, a complainant and a respondent may have present his or her union/association representative(s), and/or a support person(s), such as a friend, relative or partner. Lawyers are not permitted to participate at the informal complaint stage.

At any interview or proceeding related to a formal complaint or an appeal under this Policy, complainants and respondents may have present his or her union/association representative(s), his or her agent (e.g. legal counsel), and/or a support person, such as a friend, relative or partner.

Interpreters, including sign language interpreters, will be provided where applicable.

Separation of Complainant and Respondent

When a formal complaint is filed under this Policy, the complainant and/or the respondent may request that contact with the other party be discontinued while the complaint is being investigated and decided upon. Human Rights Services decides the request for separation, taking into consideration the nature of the complaint, the feasibility of the request, and the operations of the University.

Trivial and Frivolous Complaints, Vexatious Complaints or Complaints Made in Bad Faith

If it appears to the University's Human Rights Services that the subject-matter of concerns or a complaint is trivial, frivolous, vexatious or made in bad faith, Human Rights Services may, in its discretion, decide not to deal with the complaint. The terms "trivial", "frivolous", "vexatious" and "made in bad faith" are defined in note 9 in the "Definitions and Notes" section at the end of this Policy. The decision to refuse to deal with such matters may be made at any stage of the complaint or investigative process. Any person who is found to have made a vexatious complaint or a complaint in bad faith may be subject to a range of remedies/penalties, similar to those taken when a respondent is found to have discriminated or harassed.

Alternative Avenues of Redress

Notwithstanding the existence of this Policy, every person has the right to seek assistance from other bodies such as their union, the Ontario Human Rights Commission, the police, or the courts.

Definitions and Notes

1.    Throughout this Policy:

a.    'Age' means 18 years or more, except in the area of equal treatment in employment without discrimination where age means 18 years or more and less than 65 years.

b.    Section 10 (1) of the Code defines "disability" as follows: "because of disability" means for the reason that the person has or has had, or is believed to have or have had,

i.    any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

ii.    a condition of mental impairment or a developmental disability,

iii.    a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

iv.    a mental disorder, or

v.    an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997

c.    'Family status' means the status of being in a parent and child relationship.

d.    'Marital status' means the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage. For the purpose of this Policy, the status of living with a person in a conjugal relationship outside of marriage includes same sex relationships.

e.    'Record of offences' means a conviction for:

i.    An offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

ii.    An offence in respect of any provincial enactment.

2.    The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

3.    With regards to sexual harassment:

a.    Although sexual harassment and sexual solicitations and advances typically involve a female victim, both males and females can be harassed and/or solicited by members of either sex. Moreover, while sexual harassment, solicitations and advances typically involve a power differential, they may occur between equals/peers.

b.    Sexual assault is a crime as defined in the Criminal Code of Canada. Sexual assault is also a form of sexual harassment and will be considered such under this Policy.

c.    When a University employee enters into a consensual sexual relationship with a student or subordinate where a professional power differential exists and if a complaint of sexual harassment is subsequently filed, the imbalance of power in that relationship could make it difficult to prove mutual consent.

4.    The right to equal treatment without discrimination because of ethnic origin may include the right to equal treatment without discrimination on the basis of language, accent or dialect.

5.    'Reasonable and bona fide": The onus for showing that a requirement, qualification or factor is reasonable and bona fide in the circumstances is on the person(s) or entity (e.g. an Office, a department, the University, etc.) responsible for the applicable policy, procedure, or system. A requirement, qualification or factor that is 'reasonable and bona fide' is one that is imposed honestly and in good faith, and one which is rational based on non-impressionistic and objective criteria.

6.    'Undue hardship': The onus of proving undue hardship is on the person or entity (e.g. an Office, a department, the University, etc.) responsible for providing the accommodation. Three factors are considered when assessing whether a requested accommodation may cause undue hardship: cost, outside sources of funding, if any, and health and safety requirements, if any. Undue hardship will be shown to exist if the financial costs that are demonstrably attributable to the accommodation of the needs of the individual, and/or the group of which the person is a member, would alter the essential nature or would substantially affect the viability of the enterprise responsible for accommodation. In most cases it is unlikely that the test for undue hardship will be met solely by demonstrating that the person or entity responsible for providing the accommodation does not have adequate funds to provide it. The availability of any grants, loans, or subsidies from any level of government or from non-government sources could offset the costs of accommodation. Undue hardship will be shown to exist where a person or entity responsible for the accommodation is subject to or has established a bona fide health or safety requirement and the person or entity has attempted to maximize the health and safety protection through alternate means which are consistent with the accommodation required, but the degree of risk which remains after the accommodation has been made outweighs the benefits of enhancing equality for the group of which the person is a member.

7.    Where this Policy allows for exceptions, they are to be construed narrowly so that non-discrimination is the general rule of application and, where permitted, discrimination is the exception.

8.    In implementing this Policy, the University will make every reasonable effort to balance the rights of all parties with the legal responsibly of the University. Individual needs and special circumstances will be taken into consideration, but in so doing, the University will balance these against its obligations under this Policy and under law.

9.    Academic freedom is referred to specifically in the agreements between faculty members and instructors and the University's Board of Governors. These agreements also include a "non-discrimination" clause, referencing the prohibited grounds of discrimination as contained in the Ontario Human Rights Code and refer to more general "obligations" of faculty members and instructors. Copies of this information are available from Human Rights Services. The Toronto Metropolitan Faculty Association's collective agreement defines academic freedom as the "right to search for truth, knowledge and understanding and to express freely what one believes." It also acknowledges that academic freedom does not confer legal immunity nor diminish the obligations of individuals to meet their duties and responsibilities. Similarly, the collective agreement between the University and its instructors states that academic freedom ". . . includes the freedom to examine, question, teach and learn" and the freedom "to disseminate opinions on questions related to one's own academic interests, research and professional activities both within and without the classroom provided that the students' human rights are respected and that within the classroom, this does not interfere with students' opportunity to acquire the knowledge and skills established for the course being taught.

10.    Trivial, Frivolous, Made in Bad Faith and Vexatious Complaints

a.    Trivial and Frivolous Complaints
In considering whether allegations are trivial or frivolous, it is the subject matter and not the amount or nature of the remedy sought that acts as a guide for assessing the allegations. A distinction must be made between a complaint in which the subject is not trifling or not frivolous but where the possible remedy may be a limited one, and a complaint in which the subject matter itself is trifling. Only the latter type of complaint should be dealt with as trivial or frivolous. A trivial complaint is one in which there is a technical breach of the Policy but the impact of the breach is of such a trivial nature that continued involvement of Human Rights Services is not warranted. A frivolous complaint is one which is clearly insufficient on its face, and one in which the complainant alleges the Policy has been breached but the evidence does not in any way bear this out. It is one which may be perfectly true in its allegations, but yet is liable to be dismissed because it is totally insufficient in substance.

b.    Made in Bad Faith and Vexatious Complaints
A complaint made in bad faith is one that is known by the complainant to be false and/or one in which a complaint is made for a purpose other than gaining a satisfactory remedy. A vexatious complaint is one instituted maliciously and without probable cause and/or one which is not based on reasonable factual ground but is merely vindictive. In determining whether a complaint is vexatious or made in bad faith, one considers the knowledge and intention of the complainant. If the complainant is merely bringing the complaint to annoy or embarrass the respondent and knows that there is no discrimination or harassment, then it can be said that the complaint is vexatious or made in bad faith.

Definitions 1. a-e and 2. are adapted from the Ontario Human Rights Code.

(1) In accordance with the Occupational Health and Safety Act, a worker who has experienced workplace harassment, including workplace sexual harassment and the alleged harasser, if a worker, will be informed in writing of the results of the investigation and any corrective action taken as a result of the investigation.