Protection to employees in Ontario from “genetic discrimination” by employers has officially arrived.
An increasing number of businesses offer individual genetic testing, which may, among other things, disclose a medical diagnosis or condition, that a person may have, or carry, a genetic mutation or irregularity or that a person may be at higher-than-normal risk for contracting a disease or other potentially disabling condition.
Of course, the concern is that information of this nature, if accessible by an employer, may cause, or contribute to, potential discrimination against a job candidate, or existing employee. For example, could a person be passed over for an employment opportunity based on the employer knowing any of this information? Could an existing employee not be considered for promotion or advancement when, but for the employer knowing information of this nature, that might not have been the case?
The Ontario government is now taking steps to legislatively prohibit Ontario employers from discriminating against employees based on their genetic traits and characteristics. At the federal level, both the Canadian Human Rights Act and the Canada Labour Code have already been amended to prohibit, or minimize, this form of discrimination. Under the Canada Labour Code, for example, an employer cannot force an employee to take a genetic test, or disclose the result of any genetic-related testing. In Ontario, the prohibition is being developed to the Ontario Human Rights Code, which aims to be revised to add genetic characteristics as a further, prohibited ground of discrimination. With very limited exception, the proposed amendments will also expand every person’s right to equal treatment without discrimination in, for example, employment, including regarding that person’s genetic characteristics, being defined as the "genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease".
In the near future, it appears very likely that employees will be expressly and statutorily protected from discrimination by employers on the basis of “genetic characteristics”, including from being forced to undertake any form of genetic testing, or disclose the results of any such testing.
Bill 40, Human Rights Code Amendment Act (Genetic Characteristics), 2018