Human Rights Code Employment Protections Can Still Apply to Non-Employees
Human rights prohibitions against discrimination "with respect to employment" can extend to consultants, contractors, or other non-employee workers.
Worker Status
Certain laws apply only to employees. For instance, employment standards legislation won’t apply to independent contractors who are in business for themselves.
Taxes or other considerations may motivate some parties to characterize their working relationship as one involving a “consultant” or “contractor.” But these arrangements are sometimes complicated because employment standards prohibit employers from treating employees as if they are not employees.
Characterizing Workers
Many employment law disputes will turn on the proper characterization of a worker’s status. Typically, the law will have no difficulty looking past the labels used by the parties when it appears their true relationship more closely resembles employment.
Moreover, different considerations may apply in different regulatory contexts. For instance, a worker could simultaneously be an employee under the Employment Standards Act and an independent contractor under the Income Tax Act.
The Human Rights Regulatory Context
Ontario’s Human Rights Code does not protect against all discrimination and harassment. The discrimination or harassment must relate to one of the specific grounds listed in the Act (i.e. race, sex, disability, etc.), and it must also arise in one of the specific contexts covered by the Code.
One context protected under the Code is discrimination “with respect to employment.”
But the Human Rights Tribunal has held that the term “with respect to employment” extends beyond what may traditionally be regarded as employer-employee relationships. The Tribunal takes “a purposive, functional approach” in determining the meaning of “employment” under the Code, which it liberally construes as covering a broad range of workplace relationships, including sub-contractors and independent contractors.
So, in the right circumstanes, even self-employed workers, consultants, independent contractors, students, interns, volunteers, dependent contractors, office holders, or other non-traditional, non-employee workers could fall within the Code’s protections against discrimination “with respect to employment.”
