Student Blog: Harassment and Sexual Orientation & Gender Identity

In this first “Student Blog”, York student Shanthi Bala set out to solve a mystery we discussed in our Employment Law course.  We noted that, while “sexual orientation” is a protected ground in section 5(1) of the Ontario Human Rights Code, which bans discrimination in employment, “sexual orientation” was strangely absent from section 5(2), which prohibits harassment in employment.  Does this mean that the state intended to allow harassment on the basis of “sexual orientation”?
Shanthi investigated and found that the Human Rights Commission treats gender identity and sexual orientation as ‘sex’ within the meaning of section 7(2) of the Code.  Shanthi refers us to this review of the issue as described by the Commission.  The broader discussion of this issue can be found in this paper prepared by the Commission.  It’s a very odd way of statutory drafting though, don’t you think?  Why not just include ‘sexual orientation’ in section 5(2) along with the other prohibited grounds of harassment?
Thanks Shanthi.   Other student blogs on employment and labour law issues are encouraged.