An employee’s guide dog causes a severe allergic reaction for co-workers. A religious employer requires employees to sign a faith-based code of conduct as a term of their employment. These are examples of cases where competing human rights may exist in the workplace.
In order to assist organizations working through disputes which pitch competing human rights against one another, the Ontario Human Rights Commission developed a policy earlier this year which is meant to be a tool for resolving those disputes. Although any dispute which pits competing human rights against one another will inevitably be determined based on the specific facts involved, the Commission’s policy has created a framework to assist with resolving those disputes before they become the subject of litigation.
The process for addressing competing human rights claims is as follows:
STAGE ONE: Recognizing competing rights claims:
Step 1: What are the claims about?
Step 2: Do the claims connect to legitimate rights?
(a) Do the claims involve individuals or groups rather than operational interests? (b) Do the claims connect to human rights, other legal entitlements or bona fide reasonable interests? (c) Do the claims fall within the scope of the right when defined in context?
Step 3: Do the claims amount to more than minimal interference with rights?
STAGE TWO: Reconciling competing rights claims
Step 4: Is there a solution that allows enjoyment of each right?
Step 5: If not, is there a “next best” solution?
STAGE THREE: Making decisions
– Decisions must be consistent with human rights and other laws, court decisions, human rights principles and have regard for Ontario Human Rights Commission policy
– At least one claim must fall under the Ontario Human Rights Code to be actionable at the Human Rights Tribunal of Ontario
It is important to note that the Commission’s policy is not “law”, but rather is the Commission’s recommended approach. The Commission does not have the legal authority to require employers to follow the policy. In any event, employers should take proactive steps to address competing rights by being familiar with caselaw and considering the Commission’s policy. A full copy of the Commission’s policy can be found at the following link:
http://www.ohrc.on.ca/sites/default/files/policy%20on%20competing%20human%20rights_accessible_2.pdf
