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Cracking the Code: Who Human Rights Exclude from Inclusivity

April 15, 2024

You can be compliant with the Human Rights Code and still be underinclusive. At least that’s what the HRTO seems to have said when it affirmed that ethical veganism is not a protected ground in the Code. The Code only sets out minimum rights and protects certain grounds and the applicant in this case argued that ethical veganism was a creed which is a protected ground. But the tribunal rejected this argument because the applicant was vegan for only ethical reasons, and not as part of a broader belief system about human existence or a creator which is required to qualify as a creed.

Although there may not be any immediate legal consequence for failing to be more inclusive than the Code requires, we can and should go beyond it in fostering inclusion. Arbitrarily limiting inclusion efforts and bias training to the Code falls short of the moral justification for the Code’s existence. For example, it would be plainly offensive if an employer provided lunch where vegan options were reserved for those who had a religious or other Code protected reason for being vegan, yet denied those options to those who are vegan only for ethical reasons. But this wouldn’t violate the Code. 

Similar issues exist when examining commonly undiagnosed or misdiagnosed conditions like ADHD and autism. Should we make different inclusion efforts between two people that don’t like making eye contact, when one has been diagnosed with autism and the other has not? What about an individual who is “not a morning person” and someone diagnosed with chronic insomnia?

Considering that an individual’s ability to be diagnosed is interwoven with other forms of privilege such as access to medical care, there may be a connection to the Code even if it’s not a legally recognized one.

Even if an individual does have a diagnosed condition, they likely already feel stigmatized if they feel pressure to disclose it. It can be unrealistic to expect these individuals to risk further stigmatization by seeking protection on a Code ground, such as requesting a disability accommodation when they feel they can “get by” without one.

The issue with limiting identity – and thus inclusion – to human rights grounds is that they are not robust enough to account for different facets of human identity which are also deserving of protection. Ultimately, categorizing individuals by shared characteristics or experiences does not account for the nuances of human experience, but it is an often-necessary consequence of our legal system. Fortunately, individuals and organizations can recognize that the Code is imperfect and strive to be inclusive beyond its strict legal requirements.

To be truly inclusive, employers should recognize and normalize all the different ways human identity might impact people’s experiences in the workplace. The goal is to support all employees to feel they belong at work, not only along certain dimensions protected by the Code, but as fully unique individuals.