Ontario recently became the first province in Canada to include caste-based discrimination in its human rights code when it released a policy position outlining how this form of prejudice affects individuals and groups and what must be done to prevent and address it.
This update to the Ontario Human Rights Code comes just seven months after the Toronto District School Board (TDSB) became the first school board in Canada to recognize that caste-based discrimination exists.
The board then took the matter a step further and asked the Ontario Human Rights Commission (OHRC) to add caste-based discrimination to the province’s human rights code and outline the legal obligations organizations have to prevent and address it.
This issue was first raised last February at the school board level by Scarborough North Trustee Yalini Rajakulasingam, who told CP24.com in a recent interview that she felt compelled to do something concrete after hearing about negative experiences families in her area had based on their inherited social classification and their feelings of being “silenced.”
Rajakulasingam said within weeks of presenting her initial motion for the board to recognize caste-based discrimination almost 200 groups from across North American reached out to offer their support. She then modified that motion to include a partnership with the OHRC.
“It’s a major moment in Ontario. I think it’s a historic moment, a huge win, and it all happened so fast,” she said.
WHAT IS A CASTE SYSTEM?
According to the Ontario Human Right Commission, a caste system is defined as a “social stratification or hierarchy that determines a person or group’s social class or standing, rooted in their ancestry and underlying notions of ‘purity’ and ‘pollution.’”
This “traditional practice” is based in the political, social, cultural and economic structures of some cultural or religious communities and the societies in which it is practiced, the commission said, but may not always be visible.
Caste-markers like “first and last names, family deities, rituals, wedding bands, customs and ceremonies, belief systems, food habits or diet, accent, dialect, area of origin, ancestry, and descent” as well as the intersectional marker of skin colour, or colourism as it’s known, may all be used to identify and discriminate an individual or group based on their caste.
Different castes or sub-castes may take up different positions in the social hierarchy, while other groups may not be assigned a caste at all. These groups may be deemed “untouchable” and assigned a position at the bottom of the social hierarchy including local Indigenous peoples.
“Aperson’s caste is seen as immutable and determined at birth,” OHRC said in its Oct. 26 policy position.
WHAT ARE THE IMPACTS OF CASTE-BASED DISCRIMINATION?
Discrimination based on one’s caste can impacts all aspects of life, says the OHRC, and may result in “social and economic exclusion and inequality for persons said to be of a ‘lower’ caste,” which include the Dalit and Adivasi communities in the Indian subcontinent.
Casteism, which is internationally recognized as a human rights violation, could entail an employee being denied a promotion at work, assigned less desirable work duties, restricted from certain occupations, or even harassed because of perceptions about their social status.
Discrimination may also be experienced in housing if a landlord decides to not rent to a person from a certain caste or if they treat them differently as tenants because of it.
In school, students may experience caste-based discrimination if their institution fails to address harassment, bullying, or other negative forms of treatment based on their caste, the OHRC said.
“People may refuse to enter into a contract with someone of a different or “lower” caste,” the agency said.
WHAT DOES THE ONTARIO HUMAN RIGHTS CODE SAY ABOUT CASTE-BASED DISCRIMINATION?
The Ontario Human Rights Commission, in its recent policy position, said that there are existing grounds in the code, under its policy on preventing discrimination based on creed, to address any form of discrimination based on one’s caste or descent.
This policy notes that conflict and discrimination claims may arise between members of the same community or group and can be “shaped by social differences and power dynamics operating within communities, whether based on a person’s socio-economic status, ancestry, creed, gender, colour, race, ethnic origin, place of origin, sexual orientation, gender identity, or any other Code ground.”
It also includes what is known as “intersectional” discrimination based on two or more grounds of the code recognizing that “people’s lives involve multiple overlapping identities, and that marginalization and exclusion based on several Code grounds may happen because of how these identities intersect.”
It should be noted that caste is not currently a prescribed code ground and only the legislature can recognize it as one.
The OHRC, the Human Rights Tribunal of Ontario, and the courts, however, have been directed to take a “liberal and progressive interpretation of the Code.” Human rights tribunals have determined that caste-based discrimination is in fact covered by human rights laws and can be challenged under one or more existing grounds of the code.
This is the case in a recent decision of the British Columbia Human Rights Tribunal that awarded a taxi driver a $9,755 payout due to his experiences with caste-based discrimination. On March 15, 2023, that tribunal found that Manoj Bhangu, an immigrant from Punjab in India, was discriminated against by two co-workers on the basis of his ancestry, place of origin, and race.
Caste-based discrimination could also be considered as a form of xenophobia, which the OHRC defines as “dislike of or prejudice against people from other countries” as well as discrimination based on a stereotype or the perception that an individual or group practices a religion or comes from a community associated with the caste system.
WHAT ARE THE LIMITATIONS OF THE CODE?
Currently, the code only prohibits discrimination in services, housing accommodation, employment, vocational associations, and contracts and may not include all “differential treatment” related to caste.
It also has some exceptions that allow religious groups and other organizations to limit membership, participation and potentially the employment of individuals “as long as they primarily serve the interests of people from the group and meet other requirements of the Code.”
HOW ARE ORGANIZATIONS ARE LEGALLY OBLIGATED TO PREVENT AND ADDRESS CASTE-BASED DISCRIMINATION?
Organizations are required by law to ensure that their environment are “free from discrimination and harassment, bullying or a poisoned environment based on caste and the related grounds.”
They must respond to and investigate all claims of caste-based discrimination, and “remedy situations when discrimination is found,” the IHRC said.
The agency also said that they should have a human rights complaint procedure in place, which could also include recognizing caste-based discrimination in a corporate human rights policy.
“Training and public awareness for staff and service recipients, such as students, may also be necessary to help prevent and address misinformation, prejudice and other barriers that contribute to caste-based discrimination, especially when caste-based discrimination is or ought to be a known problem within the organization or sector,” OHRC wrote.
The commission noted that school boards have additional obligations to “protect students and other members of the school community under Ontario’s Education Act and the Provincial Code of Conduct for the education sector.
Hate activities targeted at a particular group, like advocating genocide and public incitement or willful promotion of hatred against an identifiable group, could also be a violation of Canada’s Criminal Code.