By Barry W. Kwasniewski and Martin U. Wissmath

Expected Salary and AI Use Disclosure Among Changes to Ontario Employment Standard

Employers of charities and not-for-profits should take note that they soon may be required to include salary ranges for advertised job positions, as part of amendments to Ontario employment standards. Bill 149, Working for Workers Four Act, 2023 (“Bill 149”) was ordered referred to the Standing Committee on Social Policy in its Second Reading in the Ontario Legislative Assembly on November 23, 2023. Among the proposed amendments to the Employment Standards Act, 2000 (“ESA”), Bill 149 would require employers to include the “expected compensation” for publicly advertised job positions, as well as disclose whether artificial intelligence is used to “screen, assess or select applicants” for the position, in new sections to be added to the ESA. Bill 149 includes further amendments to the Digital Platform Workers’ Rights Act, 2022, the Fair Access to Regulated Professions and Compulsory Trades Act, and the Workplace Safety and Insurance Act, 1997.

If it receives Royal Assent, Bill 149 would add a new Part III.1 to the ESA, titled “Job Postings”, with new sections 8.1 to 8.4 added. Section 8.2 would require every employer “who advertises a publicly advertised job posting” to include “expected compensation for the position or the range of expected compensation for the position.” A posted salary range would be subject to conditions, limitations and restrictions as prescribed by regulation. Section 8.3 would prohibit employers from including “any requirements related to Canadian experience” in a publicly advertised job posting “or in any associated application form”. Section 8.4 would require a statement disclosing the use of artificial intelligence.

According to a November 14, 2023 government announcement (the “Announcement”), the provincial government intends Bill 149 to help “millions of people in Ontario earn bigger pay cheques” and support newcomers to the province. The Announcement also stated that the provincial government is launching consultations to “Restrict the use of Non-Disclosure Agreements (NDAs) in the settlement of cases of workplace sexual harassment, misconduct or violence.”

Ontario Human Rights Commission Officially Acknowledges Caste Discrimination

The Ontario Human Rights Commission (“OHRC”) has updated its policy statement emphasizing the rights and legal responsibilities related to preventing and addressing caste-based discrimination under Ontario’s Human Rights Code (the “Code”). The policy statement, updated on October 26, 2023, defines a caste system as a social hierarchy based on ancestry, with various markers, such as names, rituals, and customs used for identification. Despite being invisible, a person’s caste can lead to discrimination in areas like employment, housing, and education. Employers of charities and not-for-profits should be mindful of this policy and ensure that there is no caste-based discrimination in their organization.

According to the OHRC, caste discrimination profoundly impacts individuals, resulting in social and economic exclusion, unequal opportunities, and even harassment. The OHRC recognizes caste-based discrimination as a violation of human rights, aligning with international perspectives highlighted in a 2016 United Nations report: “Caste systems violate human rights and dignity of millions worldwide.” The OHRC states that existing Code grounds, including ancestry, creed, colour, race, ethnic origin, place of origin, family status or “possibly other grounds” in Ontario provide adequate protection against caste-related discrimination, emphasizing an intersectional approach that considers multiple identity factors.

However, the Code has limitations, addressing discrimination only in specific areas like services, housing, employment, and contracts. Religious groups and organizations have exceptions, according to the OHRC policy statement, allowing certain restrictions based on Code grounds. Organizations are legally obligated to create discrimination-free environments, investigate caste-based discrimination claims, and implement remedies. Training and public awareness initiatives are recommended to combat misinformation and prejudice contributing to caste-based discrimination, according to the policy statement. Additionally, school boards have specific obligations under Ontario's Education Act and Provincial Code of Conduct.

The OHRC highlights the potential violation of Canada's Criminal Code in cases of hate activities targeting specific groups. The comprehensive policy statement underscores the OHRC's commitment to addressing caste-based discrimination within the legal framework and fostering inclusive environments through education and awareness.

​Read the November 2023 Charity & NFP Law Update