Two recent cases dealing with requests for accommodation have put the challenge of balancing competing interests in the forefront of public discussion.
On case involved a university student (male) requesting an accommodation that would exempt him from working in a small group with female students (on account of his religion). His request was denied by the professor but York University later decided that the student should have been granted the accommodation. A separate case, this time at University of Toronto, involved a male student who requested accommodation of his refusal to attend class on the basis that he was the only male in the class and was uncomfortable as such. His professor denied his request and his complaint to the Ontario Human Rights Tribunal was dismissed.
Although both of these publicized cases involved university settings, one can imagine that employers may very well be in a similar position trying to balance the competing interests of employees.
Increasingly diverse workplaces bring with them the increased chance that employers will be required to balance the competing accommodation requests of employees and/or clients and customers. Imagine a scenario where a client of at-home health care requires service to be delivered by an employee of a specific gender for religious or cultural reasons. An employer must try to accommodate the client without discriminating against its care providers.
The Ontario Human Rights Commission issued a policy “Policy on Competing Human Rights” in January 2012 which provides a timely discussion and advice on how to approach such potential conflicts. The OHRC recommends that organizations “have a clear and comprehensive competing rights policy,” governed by the following approach:
- show dignity and respect for one another
- encourage mutual recognition of interests, rights and obligations
- facilitate maximum recognition of rights, wherever possible
- help parties to understand the scope of their rights and obligations
- address stigma and power imbalances and help to give marginalized individuals and groups a voice
- encourage cooperation and shared responsibility for finding agreeable solutions that maximize enjoyment of rights.
The Policy also reminds organizations to consider the following principles when dealing with competing rights:
- No rights are absolute
- There is no hierarchy of rights
- Rights may not extend as far as claimed
- The full context, facts and constitutional values at stake must be considered
- Must look at extent of interference (only actual burdens on rights trigger conflicts)
- The core of a right is more protected than its periphery
- Aim to respect the importance of both sets of rights
- Statutory defences may restrict rights of one group and give rights to another.
The entire OHRC policy may be viewed on their website.
Michele Glassford
Editor – Human Resources PolicyPro®
published by First Reference Inc.
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