Recently, a private member's bill which proposes to add "genetic characteristics" to the list of prohibited grounds of discrimination under the Ontario Human Rights Code went through its second reading at Queen's Park and was referred to the committee stage. From an employment law point of view, if this bill is passed into law, the right to equal treatment without discrimination based on genetic characteristics would apply in employment relationships.
One of the driving forces behind this bill is the concern that genetic characteristics, if they become known by someone such as an employer, could be used to discriminate against an individual. The Ontario Human Rights Commission expressed a similar concern with regard to perceived disabilities which "could include subjecting a person to unequal treatment because of a belief that the person, due to genetic characteristics, is likely to or will develop a disability in the future."
The Canadian Coalition for Genetic Fairness, a public interest group, has also advocated for enhanced protection against genetic discrimination under Canadian law. They argue that "[i]t is unfair to use genetic information to determine which individuals will be employed or insured. To assume that someone's DNA will result in a disease or disorder is faulty, misleading and speculative."
To a certain extent, this concern appears to have been addressed in a proposed addition to the Ontario Human Rights Code which would ensure the right to equal treatment without discrimination even if "a person refuses to undergo a genetic test or refuses to disclose, or authorize the disclosure of, the results of a genetic test".
While these proposed amendments to the Ontario Human Rights Code are still several steps away from being proclaimed into law, if passed, they would certainly have an impact on the intersection of employment law and human rights legislation. If passed, the extent to which employers collect and use genetic information obtained from medical evaluations will become particularly important and policies will need to be carefully evaluated to ensure genetic information is not used in a discriminatory manner.
Written with the assistance of Mark Bisseger, articling student.
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