Caste-based discrimination policy 'an avenue for people to really be able to preserve their rights': E&L lawyer
The Ontario Human Rights Commission (OHRC) made a policy announcement recently to officially acknowledge caste-based discrimination under the Ontario Human Rights Code. While it didn’t add caste to the list of protected categories under the Code, the policy outlined that caste-based discrimination can be protected under the existing categories, including creed, race and ethnic origin.
Ontario is the first province to officially incorporate caste-based discrimination into its policies, and its an important distinction that may be a welcome one for employees currently experiencing it in their workplaces, said Zoya Alam, E&L lawyer at Goulart Workplace Lawyers in Oakville.
It could also mean more litigation for employers, she said, unless they address caste-based discrimination right now in their policies.
“It's a welcome distinction, because I think people didn't know, unless you go and you get legal advice, or you try and advance a claim like this,” said Alam. “But now there's going to be an avenue, or forum, for people to really be able to preserve their rights or to enforce their rights, so you may see an uptick in people claiming some of these issues, because now they know that there is a process for them to do so.”
Other caste-based discrimination cases in Canada and the U.S.
The move by the OHRC is indicative of similar actions taken by various jurisdictions in Canada and the States; in March 2023 a man in B.C. was awarded $9K by the B.C. Human Rights Tribunal for discrimination he suffered at his workplace – a taxi company in Richmond, B.C. – due to his caste status. In that case it was found that others in his company had violently and verbally attacked him at a company function.
South of the border, caste-based discrimination was legally banned this year by the city of Seattle, making it the first jurisdiction in North America to do so, after tech workers there became vocal about unfair hiring and promotion practices they claimed was due to their caste.
As HRD America reported, California attempted to pass a similar ban at the state level this year, but the legislation was struck down at the last stage when Governor Gavin Newsom vetoed the bill.
Caste discrimination cases likely to increase in Ontario
The OHRC’s policy is in response to a motion passed in March 2023 by the Toronto District School Board (TSB) calling on the OHRC to address caste discrimination, due to caste-based discrimination being observed in the school system.
“We made history, I’m so honored,” TSB trustee Yalini Rajakulasingam, who brought the motion, told the CBC at the time. “It’s happening from students to students, it’s happening from teacher to students, and from teacher to teacher.”
Now that caste-based discrimination has been officially acknowledged by the OHRC, there will likely be more cases brought to the commission by employees who have already been experiencing it, said Alam.
“Based off of the fact that we have seen the human rights commission and these other bodies come out with these statements, it means that it's probably an issue that already exists,” said Alam.
Caste-based discrimination is intersectional
The OHRC policy defined caste as “a social stratification or hierarchy that determines a person or group’s social class or standing, rooted in their ancestry and underlying notions of ‘purity’ and ‘pollution.’ It is a traditional practice based in the political, social, cultural and economic structures of some cultural or religious communities and the societies in which it is practised.”
In contrast to the other categories protected under the code, caste is an intersectional category, because it can be based on several factors that can overlap, the OHRC’s policy said. While an individual’s caste may not be a visible, it explains, there are several markers that can identify a person’s caste and make them vulnerable to discrimination in the workplace, such as first and last names, diet, accent, wedding bands or rituals.
“Skin colour or ‘colourism’ can also be a marker of social status that overlaps or intersects with other markers,” the policy states.
“Caste is immutable, meaning it can't be changed. So if that's your caste, that's your caste,” said Alam. “If someone has a for example, vegetarian-based diet, then that could be a marker of it, so discrimination doesn't have to be based off […] a certain religion, it is actually based off of their caste which is symbolic, which is symbolized through these various practices that they have.”
How HR should address caste-based discrimination in the workplace
As part of their legal obligation to create a workplace that’s free of discrimination, harassment, bullying or a poisoned environment under the Code, it’s important for HR professionals to educate themselves on what caste is, and to address caste-based discrimination in its policies, Alam said.
This includes training and communicating with employees about the OHRC, and creating a human rights complaint procedure that explicitly identifies caste-based discrimination and a procedure for addressing it.
“Also ensuring that if there are any claims or complaints about caste-based discrimination, that they're responded to and investigated just like you would with any other human rights complaint in the workplace,” she said. “So really bringing to light that caste-based discrimination is a type of discrimination that does need to be addressed in the workplace, would help to facilitate and create this safe environment for workers.”