The Ontario Human Rights Code and the Accessibility for Ontarians with a Disability set out the rights and obligations regarding employees, but what about volunteers? A reader of this blog (thanks Angie!) has asked about the application of these laws when recruiting volunteers. Human rights codes across Canada work largely the same on this issue, but since Angie is from Ontario, I’ll focus on this province.
Volunteers are not “Employees”
First of all, volunteers are not “employees”. The Ontario Employment Standards Act defines “employee” as a person who performs work or services for an employer “for wages”. As long as the person is receiving wages, they are not a volunteer and are therefore entitled to minimum wage, paid holidays and all of the other minimum standards set out in the Employment Standards Act.
It is possible to reward a volunteer, but that reward must be purely discretionary and not tied to performance. In other words, you can provide the volunteer with a generous gift basket on your annual volunteer recognition day, without the risk of creating an employment relationship. You cannot, however, pay the volunteer $10 for each new donor to your organization that he or she signs up on the street corner. That’s a commission and tied to performance, indicating an employment relationship.
But “Employment” Does Include Volunteers under the Human Rights Code
While the Employment Standards Act clearly does not apply to volunteers, it is likely that the Human Rights Code does. The Human Rights Code does not specifically refer to volunteers, but it also does not limit “employment” to only paid positions.
Rather, under the Human Rights Code, employment is interpreted broadly and will generally include volunteers for the purposes of applying the Human Rights Code to the workplace. See the Ontario Human Rights Commission’s website for general guidance (while the Human Rights Tribunal is not bound by the OHRC, the OHRC remains a persuasive voice in the human rights regime in Ontario).
Volunteer Canada has published a useful guide for organizations that engage volunteers. The Canadian Code for Volunteer Involvement sets out guidelines for policies and procedures for volunteers, indicating that such policies and procedures should be consistent with human rights legislation (see page 13 of the guide).
When recruiting employees (which will include volunteers under the Human Rights Code), the law is clear that you cannot discriminate against an individual based on any of the grounds set out in the Human Rights Code:
5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
For example, it is discrimination if you refuse to hire someone because they are disabled, are pregnant, are too old, are members of a lesbian social club, are members of a particular religious organization, etc.
The Human Rights Code further specifies that the recruitment process itself cannot be discriminatory:
23. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
Application for employment
(2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
Questions at interview
(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.
(4) The right under section 5 to equal treatment with respect to employment is infringed where an employment agency discriminates against a person because of a prohibited ground of discrimination in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer.
Special Interest Organizations
It is clear an organization cannot discriminate – but can an organization prefer volunteers that reflect the membership or purpose of the organization? Many volunteers are engaged by special interest organizations, which by definition may exist to promote specific religious beliefs, gender issues, sexual orientation or cultural backgrounds, etc.
Can organizations recruit to favour and/or exclude volunteers based these otherwise protected grounds?
To some extent, yes, they can. The Human Rights Code sets out special rules or exemptions in the area of recruitment for “special interest organizations” as follows:
Special interest organizations
18. The rights under Part I [the general section on Freedom from Discrimination] to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.
For example, a woman’s shelter is not discriminating against men if it has a policy to recruit only women volunteers. A church club for teenagers can require members to adhere to the religious practices of that church. A Dutch social organization can require board members to have a Dutch background.
This exemption is complicated. There will be limits to this section, and we most often see the limits determined when you have competing human rights issues. For example, can a religious organization refuse to recruit a transgendered volunteer? A full review of competing human rights would require a separate blog post, but suffice it to say that an organization can prefer volunteers that reflect the purpose or mandate of the organization, so long as the organization is not discriminating against the volunteer applying for the position (which I know is easier said than done in many situations).
Volunteers and AODA
The other piece to the human rights regime in Ontario is the Accessibility for Ontarians with a Disability Act, 2005. Both the Customer Service Standard and the Integrated Accessibility Standard under the Accessibility for Ontarians with a Disability Act, 2005 specifically require organizations to train both employees and volunteers about the provision of goods and service to persons with a disability and about the accessibility standards set out in the legislation.
The purpose of AODA is to achieve accessibility for Ontarians with a disability. The standards will be read broadly and interpreted to achieve the highest standard available under AODA and the Human Rights Code. Any ambiguity around the application to AODA to a volunteer will likely be read widely to capture volunteers and ensure all individuals engaged at an organization are bound by the AODA standards.
The world of volunteers is outside and yet part of the employment context. It is not always crystal clear what role a volunteer has within an organization, but given the quasi-constitutional status of human rights legislation in Canada, employers and organization that engage volunteers would be most prudent to assume the full range of discrimination law applies to their volunteers.
This includes ensuring your volunteers are held accountable for any discriminatory conduct they engage in while representing the organization. As always, setting out expectations in a policy for all members of the organization – whether paid or unpaid – will provide clarity around human rights issues.