Last week we posted an entry about the Attorney General’s reporton the Ontario Human Rights Review. Today’s post will revisit the report, attending to the concerns it may raise for employers.
Because the review consists of a set of observations and recommendations made by the Attorney General, what follows is more of a forecast for potential changes that we may see in the future.
Overall, the greatest concern to employers could be changes to the process of employee’s filing an application with the Ontario Human Rights Tribunal, and the accessibility of the Human Rights system in Ontario as a whole. Many of the observations in the review call for a more proactive involvement on the part of the Tribunal, to potentially reduce the number of applications filed. This idea of reduction is a positive one, based on the idea of fewer applications as the result of fewer human rights violations that would require formal applications.
One way of achieving this is by allowing the Ontario Human Rights Commission to be more involved and accessible. On page 139 of the review, the Attorney General writes:
I received feedback from stakeholders that the Commission was not sufficiently engaged with the private employment sector. Stakeholders were of the view that the Commission has not sufficiently engaged in education, voluntary compliance, or other initiatives with private sector employers, despite engaging in this work with public sector employers. Other private employment sector stakeholders observed that the Commission is not visible in their sphere and is difficult to access by telephone.
…Although the Commission is to be commended… more should be done to engage with private sector employers, with respect to both human rights education and strategic litigation.”(p.139)
The specific recommendations that follow are for an increased involvement in the private sector. Stating that three out of four applications brought to the Tribunal are based in the “social areas of employment”, the corrective measure suggested is to look at human resource practices as a whole, and to give particular consideration to litigation that is aimed at systemic discrimination in
hiring and promotion practices, especially those faced by new Canadians, persons with disabilities, and racialized Ontarians” (p. 140).
The Commission should be encouraged to take on cases and work to educate on human rights and their potential abuses (including discrimination) as they may affect domestic and foreign migrant workers, and other vulnerable groups in Ontario, as these are the people who are unlikely to bring cases to the Tribunal without the directed assistance of the Commission.
Also of interest to employers is the recommendation that respondents to applications also receive more support. Where an employer is advised to terminate an employee but is unsure if doing so could be a human rights violation, that employer should be able to inquire as to whether or not a violation would in fact be made. The idea of an employer advisor in these situations is a simple one, but certainly could be very useful. As it stands now, the Attorney General found that many respondents often have the right intention but avoid seeking legal counsel for fear of worsening an already delicate set of circumstances. The support provided to respondents or people with questions could be condensed while still being practical. For example, directing an employer to a pertinent section of the Code as it relates to their question could provide a great deal of help, with the aim of allowing that person to find the correct course of action independently, and hopefully moving forward without having made a violation at all.
Fewer human rights infractions in as the result of a better-functioning system is in the best interest of everyone. We will keep you up to date as the findings from this report are internalized with the Ontario Human Rights system, and any future changes that arise at the Commission and/or Tribunal.
First Reference Human Resources and Compliance Editor
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