“Equal”. A simple five-letter word that is given so many interpretations, but with such important implications.
As children, we are taught a simple definition of “equal” as things being the same. 4 x 2 is equal to 8 x 1. 1000ml is equal to 1 litre. Equal, we were told, is when something is the same – – in size, quantity, degree or value. Even then, however, we knew that “equal” was not the same as “identical”. When it comes to employers navigating human resource issues and relationships with their employees, this is even more obvious. For employers, “equal” does not mean the individual employees are all the same, but that they be given the same opportunities.
What is “equal” under the OHRC?
In Ontario, section 5 of the Ontario Human Rights Code (“OHRC”) ensures the right to “equal treatment” with respect to employment without discrimination based on 16 identified grounds including the well-known grounds of race, age, country of origin, sex, gender expression and gender identity. This means that individuals cannot be discriminated against or treated differently simply because they are, for example, a different race or male rather than female. Simple. But section 11 of the OHRC goes on to provide that this right to equal treatment is also infringed where “a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground.” An exception to this prohibition is where the requirement, qualification or factor is “reasonable and bona fide in the circumstances”.
So, what if you were treated differently than another employee for something that was less noticeable than the colour of your skin or your age? What if you were treated differently simply because you had a different genetic makeup than your co-worker or were genetically predisposed to a particular condition?
The case of Caster Semenya
This was the very issue before the South African Court of Arbitration for Sport when, on May 2nd, it upheld a policy of the International Association of Athletics Federations (the “IAAF”) that would impact female track athletes, like two-time Olympic champion, Caster Semenya who were genetically different than their female competitors.
Ms. Semenya is a female middle-distance runner who competes for South Africa at the international level, reaching the podium in the 800 metre events at the World Championships and in the 2012 and 2016 Olympic games. Ms. Semenya is also a hyperandrogenic athlete – meaning her levels of the hormone testosterone naturally occur at higher levels in her body than in the majority of women (the “normal” level for women is 2nmol/l). It is this genetic characteristic that makes Ms. Semenya different from some of her competitors and, in the reasoning of the IAAF, placed her at an unfair advantage to compete as a woman.
In 2009, Ms. Semenya was made to undergo “sex testing” after several competitors questioned her gender at the World Championships. In response to that investigation (which proved Ms. Semenya was, indeed, a female athlete), the International Olympic Committee and several athletic federations introduced policies requiring medical investigation of female athletes known or suspected to have hyperandrogenism. Women who were found to have the genetic characteristic were banned from competition unless they had surgical or pharmaceutical intervention to lower their natural testosterone levels. Though this practice was suspended in 2015, the IAAF issued new eligibility regulations regarding “female classifications” for track events in November 2018 which require female athletes with testosterone levels above 5 nmol/l to take medication to reduce their blood testosterone level as a condition to their competing alongside other female athletes in the hurdles and in running events with distances of 400 metres to 1 mile. Taking this medication is not part of a treatment plan for this condition, and is, in fact, medically unnecessary. Its sole purpose is to inhibit, reduce or eliminate a natural genetic condition. Ms. Semenya appealed to the Court asking that the IAAF rule be struck down.
Although the majority of the Court’s arbitrators said on May 2nd that the IAAF rule was, on its face, discriminatory, it was upheld as a “necessary, reasonable and proportionate means” of “preserving the integrity of female athletics”. The IAAF immediately celebrated the Court’s decision, stating that it protects “fair competition in women’s sports”.
On June 3rd, Ms. Semenya won an interim ruling in appealing the Court’s ruling when the Swiss Federal Tribunal ordered the IAAF to suspend their testosterone rules and policies. A full appeal by Ms. Semenya remains to be heard by a panel of Swiss Federal judges.
If upheld, the initial ruling would apply to not only female athletes who are hyperandrogenic, but also to intersex (those with differences in sexual development) and transgender female athletes. Interestingly, the ruling has no impact or application to male athletes who have “above normal” levels of testosterone as compared to their competitors. Nor is there a policy or practice introduced to seek an equal playing field for athletes in other sports who compete against those with genetic characteristics perceived to give a competitive advantage; such as swimming against Michael Phelps, whose longer arms and large palms give him greater pulling power in the water; or shooting baskets against Manute Bol who, at a height of 7’7”, was one of the tallest players in the NBA. Instead, the IAAF rule allows differential treatment against only a subset of female track athletes in an attempt to achieve “equality” for all.
The new frontier of employment discrimination?
What does this have to do with employment? Today there are several reasons why individuals undergo genetic testing. Whether it is as simple as questions about your ancestry, determining paternity in family law matters, or identifying your pre-disposition to health issues (such as the BRCA gene related to breast cancer), genetic testing can provide useful personal information to individuals. Well, imagine being told that you could not perform your job, the skill for which you have spent years training and working, because the employer perceived there was something in your genetic makeup which was seen to give you an edge or a disadvantage over your co-workers. Or that you would not be given opportunities for promotion or to compete for a new job opening in the workplace because it would be unfair to reward you for your natural condition or because you were different.
While the question plays out on the international stage for female track athletes, legislation here at home has already taken steps to address it. In May 2017, the Canadian Human Rights Act was amended to prohibit discrimination in employment with federally regulated employees based on genetic characteristics. Similarly, the Canada Labour Code provides that employees cannot be forced to undergo a genetic test or to disclose the results of genetic tests.
In Ontario, Bill 40, Human Rights Code Amendment Act (Genetic Characteristics), 2018, is currently before the Ontario legislature and passed second reading on October 18, 2018. If passed, the Bill would amend the OHRC to include genetic characteristics as a prohibited ground of discrimination and would include the right to equal treatment even if a person refuses to undergo a genetic test or disclose the results of genetic tests.
The potential impact in Ontario
What does this mean for employees and employers in Ontario? It means that employees working for federally regulated workplaces have the right to equal treatment and opportunities in employment regardless of their genetic makeup. In Ontario, while keeping an eye on Bill 40, the OHRC already prohibits access to genetic information under the ground of disability. Likewise, I would argue that section 11 of the OHRC prohibits any policy which restricts participation of hyperandrogenic female employees in a project, position or event as it would exclude a group of women (a protected group) from employment opportunities. For this reason, employers ought to take care to ensure protection from indirect discrimination on the basis of genetic characteristics or conditions and seek advice from their counsel when questions of differential or preferential treatment of employees arises in the workplace.
By Cindy Ingram
 The one exemption contained in Bill 40 is in respect of insurance contracts. Insurance companies may make distinctions, exclusions or preferences in coverage or benefits based on an individual’s genetic characteristics, with reasonable grounds.