No Hierarchy of Human Rights - New Canadian Media
Thamina Jaferi
August 26, 2014
An alarming idea has recently been circulating in human resources circles in Canada: when it comes to competing human rights, maybe there should be a “hierarchy of rights,” with the rights of some groups trumping the rights of other groups.
It is distressing to see that religious accommodation requests made to York University and to the Canadian Border Services Agency have been sensationalized in the media in a way that has influenced people to conclude that religious accommodation has gone too far, and that gender and sexual orientation rights are at risk. I would like to point out that this type of fear mongering does not help organizations and individuals appreciate the careful consideration they must give to requests for accommodation. My intent is not to debate whether the decisions in those cases were right, but rather to place much-needed emphasis on the appropriate legal framework that must be applied to situations in which the rights and freedoms of one Canadian might compete with the rights and freedoms of another.
According to the Ontario Human Rights Commission (OHRC), competing human rights “involve situations where parties to a dispute claim that the enjoyment of an individual or group’s human rights and freedoms, as protected by law, would interfere with another’s rights and freedoms.”
Examples of competing rights situations given by the OHRC include:
–          A Code right versus a Code right (“Code” referring to the Human Rights Code or human rights legislation of any province or territory)
–          A Code right versus a Code legal defence
–          A Code right versus another legislated right
–          A Code right versus a Charter right
–          A Code right versus a common law right
–          An international treaty right versus a Code/Charter defence
–          A Charter right versus another Charter right
It is clear that creed (see definition via link) is still a source of many human rights complaints, especially in employment. Statistics from the OHRC’s 2013 Human rights and creed research and consultation report shows that in 2011-12, a little over 42% of the 186 religion-based applications to the Human Rights Tribunal of Ontario (HRTO) cited creed accommodation. Also, about 73% of all 2011-2012 HRTO applications in the context of employment cited creed.
Some critics claim that religious rights are being given more importance than other rights. Arguments that organizations are going “above and beyond” to accommodate religion-based requests are misleading and unsubstantiated. Additionally, as noted by the OHRC in the same report, these statistics do not account for the “under-reporting [and] mis-reporting [of creed discrimination complaints], and the unknown outcome of applications alleging discrimination.” Thus, religious accommodation requests cannot be arbitrarily dismissed on the basis that organizations are already doing a satisfactory job of addressing those requests.
Arguments that organizations are going “above and beyond” to accommodate religion-based requests are misleading and unsubstantiated.
Other critics use the argument that because religious identities have been “chosen” as opposed to other identities that are not chosen, this justifies giving them second-class status when dealing with situations in which rights compete. The Charter of Rights and Freedoms and human rights laws do not distinguish between characteristics that are “chosen” and those that are not. The fact that someone has chosen their religion does not mean that they do not deserve equal human rights protection as someone who has not chosen to be a woman or of a different sexual orientation.
The Charter of Rights and Freedoms and human rights laws do not distinguish between characteristics that are “chosen” and those that are not.
Furthermore, no matter how unpopular the group, human rights protections are to be applied equally to all groups that have valid human rights claims. Laura Stemp-Morlock, a PhD student in Religious Studies at the University of Waterloo, astutely commented in an article on competing rights that institutions and organizations “must also ensure that religious people – just like women, people with disabilities, racial or sexual minorities, etc. – may access … services with their identities intact.” To quote the former chief commissioner of the OHRC and lawyer Raj Anand, “As a general proposition, sensitive and difficult issues of minority rights are not best resolved by polling or public outcries. Careful and balanced analysis of the competing positions is the better alternative.”
It is highly recommended that organizations, employers, human resource managers and anyone responsible for workplace accommodation read and understand the OHRC Policy on competing human rights. They are encouraged to pay particular attention to the section on the analysis for addressing competing human rights situations.
The OHRC has clearly laid out the key legal principles that govern the organizational analysis of competing rights:
1.       No rights are absolute
2.       There is no hierarchy of rights
3.       Rights may not extend as far as claimed
4.       The full context, facts and constitutional values at stake must be considered
5.       Must look at extent of interference (only actual burdens on rights trigger conflicts)
6.       The core of a right is more protected than its periphery
7.       Aim to respect the importance of both sets of rights
8.       Statutory defences may restrict rights of one group and give rights to another.
For those who fear religious accommodation requests may overreach the limits of “reasonable” accommodation, it is important to note that the OHRC framework of analysis has built-in restrictions in order to prevent this outcome.  “No hierarchy of rights” means exactly that: religious rights would not automatically trump other protected rights or freedoms, nor would other protected rights and freedoms automatically trump religious rights.
When an organization receives a request for accommodation it is legally obligated to review the request, undertake the appropriate analysis, and document that they have carried out this analysis. This analysis also allows organizations to factor in any costs, and health and safety risks which may constitute “undue hardship” to accommodation. An organization is in a position to make the final accommodation decision only after this comprehensive analysis is carried out.
Making a decision to deny an accommodation request based on personal opinions, no matter how strongly held, or public opinion can not only tarnish an organization’s reputation, but can also expose the organization to a human rights complaint. Organizations should be more cautious and ensure that their approach to accommodation complies with the OHRC policy on competing rights. Additionally, they should not reject an accommodation request at first glance just because it seems to conflict with the rights and freedoms of others.
Contrary to the popular belief that some organizations have committed “blunders” with their accommodation requests, the most appropriate judges of whether that is in fact the case are the human rights tribunals who regularly see competing rights cases, and have the training and expertise to know whether or not an organization has met its duty to accommodate.
Lastly, it is worth mentioning that resolving competing rights claims is not about “I win, you lose”. If the appropriate analysis is carried out in a conscientious way, it can result in a balanced solution which respects the rights of all parties.
Thamina Jaferi, B.A., J.D., is an Associate with Turner Consulting Group with expertise in human rights and workplace discrimination and harassment prevention. You can read Thamina’s original blog article here.
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