Human Rights

1. Human Rights Chapter 5

2. What are human rights? • A right is a legal ,moral, and social claim that people are entitled to • Human rights – right to equal treatment, to be free from prohibited discrimination and harassment, and to have equal access to places services and opportunities • Discrimination – individual is treated unfairly because he or she is a member of a certain group – treatment is differently for reasons other than individual merit

3. Human Rights legislation • Canadian Charter of Rights and Freedoms • Protection from abuses by government • Does not provide protection from discrimination from individuals or private organizations • Provincial Human Rights Codes/Acts • Differ slightly from province to province • Protection from discrimination based on race, national or ethnic origin, colour, religion, sex, sexual orientation, mental or physical disability, family or marital status

4. Terminology • Stereotyping – an oversimplified, false, or generalized portrayal of a group of people • Prejudice – preconceived opinion based on a stereotype or inadequate information

5. Canadian Human Rights Act(CHRA) - 1977 • Applies to all federal government departments, Crown corporations, and business and industries that are under the jurisdiction of the federal government • Post office • Chartered banks • Airlines

6. Canadian Human Rights Act(CHRA) - 1977 • CHRA prohibits discrimination based on: • Race • Colour • National or ethnic origin • Religion • Age • Sex or gender (including pregnancy and childbearing) • Marital status, family status • Physical or mental disability (including dependence on alcohol or drugs) • Pardoned criminal conviction • Sexual orientation • CHRA also covers areas such as hate mail and pay equity

7. Canadian Human Rights Act(CHRA) - 1977 • Section 67 • CHRA does not affect any provisions made within the Indian Act • However, if a band or the Indian Act has not enacted legislation or bylaws dealing with a particular matter, the CHRA may still have force • See Desjarlais c. Piapot Band (1989), pg 113

8. Provincial Human Rights Codes • All provinces have enacted Human Rights codes • Status of an Act – therefore can be amended at any time by that provinces provincial government • Subject to the Canadian Charter – i.e. cannot enact a law in violation of the Charter • Gender discrimination – girls permitted to play on boys’ hockey teams • Is Forced Retirement Discriminatory • See case on page 114

9. Administering Human Rights Legislation • Provincially appointed commissions • 96% of complaints are settled by the commissions • 4% have to be heard/resolved by boards of inquiry/tribunals

10. Administering Human Rights Legislation – Filing a Complaint • Individuals who feel that they have been the victim of discrimination, must follow the rules and procedures established by the provincial human rights code • A lawyer is not required to file a complaint • Individuals can withdraw their complaint at any time after the file is opened • Inquiries to the commission are confidential

11. Administering Human Rights Legislation – Filing a Complaint • The complainant is the person making the allegation of discrimination • May be provided with an information packet • May be required to complete a form describing the events and circumstances

12. Administering Human Rights Legislation – Filing a Complaint • Employment discrimination example • Need to establish a prima facie case (legally convincing unless disproved by contrary evidence) • You were qualified for that particular employment • You were not hired; and • Someone no better qualified subsequently obtained that position – someone who lacked the distinguishing feature that represents the gravamen (significant part) of the human rights complaint (e.g. race, colour, etc) • The essential element of a lawsuit. For example, the gravamen of a lawsuit involving a car accident might be the careless driving of the defendant.

13. Complaint Process • See chart on page 116

14. Administering Human Rights Legislation – Dismissing a Complaint • The commission may dismiss a claim after is has been filed because: • another act may more appropriately deal with the issues raised in the complaint • Complaint is not within the jurisdiction of the commission • Complaint is trivial, frivolous, vexatious, or made in bad faith • Where the complaint was filed more than 6 months from the last incident of discrimination, and it appears the delay was not incurred in good faith, and there is evidence of substantial prejudice to the parties because of the delay (the time limits vary from province to province)

15. Administering Human Rights Legislation – Filing a Complaint • Response to the complaint • The response from the commission will inform the complainant if the complaint is covered by the provincial code • If so, the complaint will be served to the respondent (the persons or organization you are alleging discriminated against you) • The respondent will be asked to formally respond to the allegations

16. Administering Human Rights Legislation – Role of the Commission • Mediation • The next step of the process if the complaint has been accepted • Means of settling disputes prior to a formal investigation • Formal investigation • If the mediation is refused or an agreement is not reached • Gather relevant evidence, inspecting documents, interviewing witness, etc • Report • Written after the investigation to inform the parties of the results • Conciliation • May be attempted at this stage • Bring the parties together in another attempt to resolve the dispute

17. Administering Human Rights Legislation – Role of the Commission • Referral to commissioners • If a resolution is not reached by conciliation, the case is referred to the commissioners • The commissioners will: • Dismiss the case if they believe there is insufficient evidence to prove discrimination • The complainant has a period of time to appeal the decision (15 days in some jurisdictions) • If the commission turns down the request for a review, the decision is final

18. Administering Human Rights Legislation – Role of the Commission • Referral to commissioners • The commissioners will (cont’d) : • If sufficient evidence exists • Refer the case to a board of inquiry or human rights tribunal • The hearing is similar to a trial • Evidence is examined • Witnesses are called and asked to testify and be cross examined • The decision of the commission may be appealed and sent for judicial review

19. Administering Human Rights Legislation – Remedies • Various remedies are possible • Generally intended to put complainants in the same position they would have been in had the discrimination not occurred • Possible remedies • Ordering the person or organization to stop the discriminatory practice

20. Administering Human Rights Legislation – Remedies • Possible remedies • Ordering the person or organization to stop the discriminatory practice • Compelling the respondent to issue a letter of apology • Ordering the respondent to pay the complainant for mental anguish of for any losses suffered in pay or benefits • Compelling the respondent to reinstate the person in their job or grant the promotion that was denied

21. Administering Human Rights Legislation – Remedies • Possible remedies (Cont’d) • Ordering the organization to adopt programs designed to relieve hardship or economic disadvantage, or to assist disadvantaged groups in achieving equal opportunity in the organization • Requiring the organization to provide human rights and anti-discriminatory training for all employees, to develop comprehensive policies to eliminate discrimination, or to undertake other similar remedies • See Kanags Premakumar v. Air Canada (2000) pg 119

22. Grounds of Discrimination - Employment • Everyone has the right to expect “equal treatment with respect to employment” • Job application process • Training • Transfers • Promotions • Apprenticeship • Dismissal • layoffs

23. Grounds of Discrimination - Employment • Exceptions Under the Law • Certain actions may not be considered discriminatory if they are “reasonable and justifiable” under the circumstances • Higher insurance fees to younger drivers • Specific skills required to perform a job – bona fide occupational requirement • Affirmative Action – provides advantages to groups that have been discriminated against in the past • Gender • Community • Visible minorities

24. Grounds of Discrimination - Employment • Constructive and Direct Discrimination • Constructive discrimination – employment practices or policies that may inadvertently exclude certain individuals • Height requirements for police officers excluded most females and minorities • Often more difficult to detect that direct discrimination • Direct discrimination – discrimination that is openly practiced or overt

25. Grounds of Discrimination - Employment • Duty to Accommodate • An employer has a legal duty to accommodate (to the point of undue hardship) the individual needs of the employee – SCC ruling • E.g. not requiring the employee to work on religious holidays • Undue hardship – the result of a change that would affect the economic viability of an enterprise or produce a substantial health or safety risk – the burden is on the employer to prove the extent of the hardship

26. Grounds of Discrimination - Employment • Harassment in the Workplace • Everyone has the right to be free from experiencing humiliating or annoying behaviour • Harassment may be based on one of more of the grounds found in the provincial human rights codes • Racial, religious, sexual slurs – repeated or ongoing • Sexual harassment – includes unwelcome sexual contact, remarks, leering, demands for dates, requests for sexual favours, displays of sexually offensive pictures or graffiti • Employers are responsible for ensuring the conduct of their employees

27. Grounds of Discrimination - Employment • Poisoned Environment • When a person or group is continually subjected to actions that create an uncomfortable atmosphere • Possible when comments or actions create a real or perceived inequality • It is the responsibility of the employer to ensure that a poisoned environment does not exist in the workplace • See Chartrand v. Vanderwell p 124 • A poisoned work environment causes pain – pg 125

28. Grounds of Discrimination - Accommodation and Facilities • All individuals have the right to equal treatment in accommodation • Place where people live or want to live • May be long term or temporary • Refusal to sell or rent based on race, age, marital status or source of income • Facilities • Every person has a right to equal treatment with respect to services, goods and facilities without discrimination… • Facilities - Areas or buildings designated for public use • Parks, hockey arenas, concert halls

29. Grounds of Discrimination – Meeting Special Needs • Discrimination on the basis of disability is prohibited • Employers are required to accommodate the needs of workers with • Psychological • Emotional • Physical disabilities • Suffering from addition to drugs and alcohol • Landlords may also be required to ensure that their buildings are accessible to all persons • Accommodation to the point of undue hardship applies in these cases as well • See The Final Curtain – pg 128

30. Grounds of Discrimination – Goods and Services • Everyone has the right to equal access to goods and services • Goods • merchandise that can be purchased • Services • Ways of meeting consumer needs that do not involve the purchase of tangible goods • See Anderson v YMCA pg 129