The recent controversy regarding religious accommodation and gender rights at York University has provoked much discussion as to how employers and other institutions should respond when faced with accommodation requests that are in apparent conflict with the rights of other employees, customers or stakeholders.
This is a complicated area for employers. Even with the best of intentions, because one set of rights may be perceived to be favoured over the other, human rights complaints may seem inevitable. How can an employer fulfill its legal obligations when faced with competing interests?
In a 2012 decision,1 the Supreme Court of Canada held that "competing rights claims should be reconciled through accommodation if possible, and if conflict cannot be avoided, through case-by-case balancing". But this raises the key question: how is this balance to be achieved?
OHRC Policy on Competing Human Rights
The Ontario Human Rights Commission ("OHRC") has attempted to provide guidance to organizations in responding to competing rights complaints in its 2012 "Policy on Competing Human Rights" (the "Policy"). The Policy provides a recommended approach in the form of a three stage/five step process. While this analytical framework has not been explicitly endorsed by the Human Rights Tribunal of Ontario ("HRTO")2 or the courts, it bears similarities to the approach taken by the Supreme Court of Canada.
The OHRC Policy sets out a useful framework for analyzing competing rights problems. While following this framework will not guarantee that an employer or other institution will avoid being the subject of a human rights complaint, it can help employers navigate this legal minefield and demonstrate that the employer gave serious consideration to balancing the competing claims in seeking to fulfill its legal obligations in good faith.
Stage One: Recognizing Competing Rights Claims
The first stage of the OHRC framework focuses on determining the nature of the rights at issue. The OHRC recommends asking three questions at this stage:
1. What are the claims about?
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 a right when defined in context?
3. Do the claims amount to more than minimal interference with a right?
The outcome of the first stage of the analysis should help to determine whether legitimate human rights are engaged and assist in determining the process for resolving any apparent conflict.
Stage Two: Reconciling Competing Rights Claims
Once the competing rights are identified, the next stage in the OHRC analytical framework involves the claimants and the employer attempting to reconcile those rights in a mutually-satisfactory manner. To assist in this process, the OHRC recommends asking the following questions:
- Is there a solution that allows the enjoyment of each right?
- If not, is there a next best solution for one or both rights?
Ideally, competing claims can be resolved at this stage on terms acceptable to all parties. However, failing this, the next step is to advance to formal dispute resolution.
Stage Three: Making Decisions
The third and final stage of the OHRC framework requires the employer to make a decision to resolve the competing claims in order to fulfill its legal obligations. This decision must be consistent with human rights principles and case law.
While the Policy proposes various potential resolution processes and provides a number of examples, ultimately the approach taken will depend on the specific circumstances and rights at issue. Regardless, in resolving competing claims employers should keep in mind the following eight legal principles that have emerged from various Charter and human rights decisions that are helpfully summarized in the Policy:
i. No rights are absolute,
ii. There is no hierarchy of rights,
iii. Rights may not extend as far as claimed,
iv. The full context, facts and constitutional values at stake must be considered,
v. One must look at the extent of interference (only actual burdens on rights trigger conflicts),
vi. The core of a right is more protected than its periphery,
vii. Aim to respect the importance of both sets of rights, and
viii. Defences found in legislation may restrict rights or allow differential treatment in certain circumstances.3
Balancing competing human rights claims is one of the most challenging situations faced by employers today. By following a structured analytical framework such as the one recommended in the Policy, employers can minimize their risk and hopefully resolve competing concerns in a mutually-satisfactory manner. In the alternative, ensuring an appropriate process is followed will reduce an employer's liability should a human rights complaint or complaints be filed despite its best efforts.
1 R. v. N.S., 2012 S.C.C. 72.
2 But see Taylor-Baptiste v. OPSEU, 2013 HRTO 180, where the HRTO dismissed a request for reconsideration. After noting that it is not bound by OHRC policies, the HRTO nonetheless found that the approach taken in the decision in question reflected the analytical approach recommended in the Policy.
3 E.g. pursuant to section 18 of Ontario's Human Rights Code, "special interest organizations" that are primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination are expressly permitted to restrict membership to persons who are similarly identified.
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