In Canada, we are known to have a very robust human rights legal framework. As part of that framework, most provinces have enacted human rights legislation that prescribes the grounds on which individuals are protected from discrimination (“protected rights”). It is well established that there is no hierarchy of protected rights; all are equally protected under the law, as they should be. However, while equal protection is an important component of human rights law, it presents a practical challenge, particularly for employers, when workplace conflicts arise involving competing protected rights. The risk of this challenge arising increases as organizations prioritize creating an inclusive work environment. This is a very difficult and nuanced issue for employers to navigate. In fact, employers often describe these circumstances as “impossible” because there seems to be no way to give equal consideration to the rights being asserted, at least not without exacerbating the conflict.
As a firm, we often investigate complaints involving competing protected rights and we conduct restoration processes aimed at resolving the disruption caused by such conflicts. Our experience has given us insight into some of the measures that employers have implemented in response to these issues. In this blog, I will discuss some of what I have observed regarding organizational responses, the challenges that those responses may present, as well as potential options for employers to consider in these complex situations. However, before discussing these points, I will clarify what is meant by “competing protected rights.”
The Ontario Human Rights Commission (“OHRC”) in its Policy on Competing Human Rights offers a useful general explanation of competing human rights. It states, “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.” To specifically clarify the concept of competing protected rights under the Ontario Human Rights Code (“the Code”), the OHRC1 offers the following scenarios as examples:
In both examples, the exercise or enjoyment of one person’s protected right is said to be interfering with the exercise or enjoyment of the other person’s protected right. The question for any organization is what to do in situations like these.
I now turn to my observations of some organizational responses.
The following are some organizational responses and my perspective on the challenges that they may present. To be clear, this is not intended to be a criticism of employers who may have adopted these measures because I recognize the difficulties that these situations present. The goal is to share insights on what to be mindful of and to consider opportunities for improvement.
Sometimes, because there is so much uncertainty regarding how to respond and address disputes involving competing protected rights, organizations may default to a position of silence. In our experience, the result of silence is that the issues fester until they escalate into formal complaints, at which point an investigation becomes necessary.
At the other extreme of silence is the response of directly or indirectly aligning with one party or the other. For example, because the views of one may be more controversial than the other or create more difficulty for the organization, employers may ask one party, and not the other, to discontinue their actions. While there may be varying reasons for an organization to adopt this approach, the organization should be mindful of a potential claim for discrimination if an employee, who may be exercising their protected right in a permissible manner, is asked to desist.
In some instances, because the competing rights are equal under the law, and both parties are entitled to exercise those rights, the employer’s response may be that there is nothing that the organization can do. In our experience, the result is usually formal complaints of discrimination or harassment, medical leaves, or resignation. Moreover, the reality that is overlooked by this response is that the organization has an obligation to address competing human rights concerns in the same way that it has an obligation to address any other human rights concern. Therefore, deciding that it can do nothing may not be the best approach.
At this point in the blog, you may be wondering, “So, what can employers do in such difficult situations?” The OHRC, in its Policy on Competing Human Rights, provides a useful framework that can assist organizations with reconciling competing protected rights claims in a manner that is consistent with human rights principles.2 Essentially, the recommended approach is first to try and find an “ideal” reconciliation, and if that is not possible, to then look at finding the “next best” solution. Below I discuss some key considerations for the framework.
In the context of competing protected rights claims, a reconciliation process considers whether there is a solution that allows enjoyment of each right, whether fully or at least substantially. In other words, the goal is to achieve an outcome where neither party has to give up anything substantial. As the OHRC explains, reconciliation may involve changing or adjusting the way one or both parties enjoy their right. In essence, the process involves assessing the specific needs of each party and identifying where those needs may actually conflict. Once the conflicting needs are identified, consideration can then be given to what, if any, changes or adjustments can be made to satisfy the specific needs of each party.
In our experience, a process that is aimed at giving effect to a right gives some validation to a person’s claim, even if that person does not ultimately get exactly what they want. To be clear, reconciliation does not necessarily mean agreement between the parties. At the end, they may still not “agree” with each other, but it is an outcome that recognizes the validity of the parties’ rights and allows for the continued exercise of those rights in a manner that fosters respect and inclusion, even if not agreement.
I appreciate that in competing protected rights cases, parties are often very positional, and each expects the organization to take action in favour of their protected right. As such, they may not be immediately open to a reconciliation process. To encourage their participation, it may be helpful to clarify at the outset that their rights are equal under the law. As such, the organization is under no obligation to afford greater protection or recognition of one over the other. What the organization is obligated to do is create an environment where both their rights are protected from violation. However, the reconciliation process affords them the opportunity to participate in achieving a desired outcome whereas the organization may otherwise have to make a unilateral decision that neither party is satisfied with.
Certainly, this is a difficult conversation to have and the reconciliation process, if the parties decide to engage, is complex. Therefore, to be effective, it requires a skilled, inclusive, and empathetic approach. That said, I recognize that a reconciliation process may not always be successful, or parties may not always agree to participate.
If a reconciliation process is not successful or parties do not wish to participate, the response is not for the employer to then give up. Rather, the approach should be to consider the next best solution that least impairs the exercise of a person’s right. That said, the next best solution may invariably involve rights being limited or compromised to some extent. Given that reality, it is important for employers to apply established human rights principles that include “human dignity, inclusion of all, community and social harmony, and the collective interests of minority or marginalized groups.”3 The following are some of the factors or principles which the OHRC indicates should be considered when assessing the next best solution:
I recognize that not every situation will allow for reconciliation or an alternate solution. If that is the case, the organization still needs to make a decision one way or the other because, as mentioned above, it has a legal obligation to deal with competing human rights claims in the same way that it has an obligation to deal with any other human rights claim. To satisfy its obligation, the employer may need to make findings regarding the specific behaviour complained of by each party and determine whether one or both parties have exercised their respective rights in a manner that violates the organization’s policies or applicable law(s). As noted above, no right is absolute. The appropriate process in that situation may be an investigation and, based on the outcome, the organization will then need to determine the appropriate response to each party. A possible outcome of an investigation is that the findings or the full context may signal to the employer alternate solutions not initially contemplated. Therefore, even following an investigation, there may be an opportunity to revert to the framework above to identify the “next-best” solution. Nonetheless, when making its decision, employers are implored to apply appropriate human rights principles and, where necessary, seek legal advice.
Difficult though these situations may be, they are not hopeless or impossible. However, whatever the approach that the employer decides to take, it is important that the person(s) conducting the chosen process has the requisite expertise to do so. Specifically, there should be a demonstrated understanding of human rights principles as well as an understanding of the realities and nuances of the protected rights concerned. If the organization lacks the internal capacity and expertise, they should consider when to engage external support.
In conclusion, while employers ultimately have to determine the most appropriate approach to dealing with these complex situations, in our experience, an approach aimed at recognizing and reconciling competing protected rights is more beneficial to the parties and the organization than an approach that limits those rights or a process that questions the merit of their claims.
