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posted February 15, 2005
Three questions considered by our legal committee:
NOTE: All excerpts from legislation below are enclosed in blocks surrounded by dashed lines.
A: Some yes, some no. See below.
In the affirmative:
The Policy reads:
"Policy on Discrimination Because of Pregnancy
9. Services, Goods and Facilities (s. 1)
The code prohibits discrimination in "services, goods and facilities" against women who are breast-feeding. This means that a woman cannot be prevented from breast-feeding a child in, for example, a public area or restaurant.
You have rights as a nursing mother. For example, you have the right to breastfeed a child in a public area. No one should prevent you from nursing your child simply because you are in a public area."
- True. BCHRC 1997 case - Poirier, although this case was decided solely re: a woman's right to breast-feed in the context of her employment. [NOTE: although discrimination re: denial of public facility, etc. was alleged by Michelle Poirier, the tribunal decided that she was denied for work-related reasons, therefore, she did not establich prima facie case needed to proceed re: public facility. This was an outright denial of right to breastfeed; it was either do not breastfeed here or do not come.]
In the negative:
[from the policy:] "They should not ask you to 'cover up', disturb you, or ask you to move to another area that is more 'discreet'."
- I found no case-law re: human rights commissions or courts so far to support this.
- To the contrary, there are a number of strong arguments based in both the Ontario Human Rights Code itself and, apparently, human rights decisions (Alta and Manitoba) re: breastfeeding in other jurisdictions that pose strong challenges to this very broad statement.
The Ontario Human Rights Code
"This policy statement contains the Commission's <i>interpretation</i> of ... the Code ... It is subject to decisions by Boards of Inquiry and the courts. The policy should be read in conjunction with those decisions and with the specific language of the Code..."
And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;
"harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; ("harcèlement")
1. <www.e-laws.gov.on.ca/DBLaws/Statutes/French/90h19_f.htm> Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1).
§ PART II
INTERPRETATION AND APPLICATIONDefinitions re: Parts I and II
"equal" means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination; ("égal")
Reprisals
8. <www.e-laws.gov.on.ca/DBLaws/Statutes/French/90h19_f.htm> Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. R.S.O. 1990, c. H.19, s. 8.
Announced intention to discriminate
13. (1) <http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90h19_f.htm> A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I. R.S.O. 1990, c. H.19, s. 13 (1).
Opinion
(2) <http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90h19_f.htm> Subsection (1) shall not interfere with freedom of expression of opinion. R.S.O. 1990, c. H.19, s. 13 (2).
Restriction of facilities by sex
20. (1) <http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90h19_f.htm> The right under section 1 to equal treatment with respect to services and facilities without discrimination because of sex is not infringed where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency. R.S.O. 1990, c. H.19, s. 20 (1).
A: None, that I have come across so far.
A: At this point, I think that any statement that goes beyond protecting a woman's right to breastfeed in a public space is policy only and not supported by the law.