Human Rights

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Pocket Guide on
Human Rights
Institute Offices
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What are human rights? . . . . . . . . . . . 3

What is discrimination? . . . . . . . . . . . . 3

What are human rights in the
workplace? . . . . . . . . . . . . . . . . . . . . . 3

Legislation . . . . . . . . . . . . . . . . . . . . . 4

Overview of the Canadian Human
Rights Act . . . . . . . . . . . . . . . . . . . . . . 4

What is accommodation / the duty to
accommodate? . . . . . . . . . . . . . . . . . . 5

What is a “ bona fide occupational
requirement” (BFOR)? . . . . . . . . . . . . 6

What is “Undue Hardship”? . . . . . . . . 6

Request for Accommodation . . . . . . . 6

Human Rights Complaints to the
Commission . . . . . . . . . . . . . . . . . . . . 8

Grievances and Other Complaints
Regarding Discrimination . . . . . . . . . . 8

What is the Role of the Union? . . . . . . 8

What should Institute members do? . . 9

What Should Stewards Do? . . . . . . . . 9

Advancing Human Rights in the
Workplace . . . . . . . . . . . . . . . . . . . . . 9
WHAT ARE HUMAN RIGHTS?                                   Discrimination occurs where an
                                                         individual is negatively or adversely
“Human rights are commonly                               affected as a result of one of these
understood as being those rights which                   characteristics. Discrimination can be
are inherent to the human being. The                     intentional, for example, being directly
concept of human rights acknowledges                     excluded or treated differently on the
that every single human being is entitled                basis of age, sex, race, etc... An
to enjoy his or her human rights without                 example of intentional discrimination
distinction as to race, colour, sex,                     would be a practice of excluding older
language, religion, political or other                   workers from access to job training. Or
opinion, national or social origin,                      discrimination can be unintentional,
property, birth or other status.”                        when a rule, standard, or practice that
                  - United Nations, Office of the High   appears neutral has an adverse impact
                     Commissioner for Human Rights
                                                         on a particular group. An example of
Human rights are founded on respect                      unintentional discrimination might be a
for the dignity and worth of each person.                rule that imposes a height requirement
They are inalienable, universal, and                     for a certain job - although this appears
indivisible. Human rights in Canada are                  neutral, it may have the effect of
legally protected by human rights laws                   excluding women.
and the Canadian Charter of Rights and
Freedoms.                                                Discrimination does not have to be
                                                         intentional. Even if there was no intent
                                                         to discriminate, an action, policy, or
WHAT IS DISCRIMINATION ?                                 practice that has an adverse impact on
                                                         persons in an enumerated group can
Discrimination means making                              still be considered discriminatory. It is
distinctions or treating people negatively               the impact that matters and not the
or adversely because of their race, age,                 intent.
religion, sex or other prohibited ground
of discrimination.
                                                         WHAT ARE HUMAN RIGHTS IN THE
                                                         WORKPLACE ?
Under the Canadian Human Rights Act,
the prohibited grounds of discrimination
are race, national or ethnic origin,                     Generally, employees have the following
colour, religion, age, sex, sexual                       rights in the workplace:
orientation, marital status, family status,
disability and conviction for which a                    •      the right to be free from
pardon has been granted. A person                               harassment and discrimination
cannot be denied employment, goods,                             based on the prohibited grounds
services, facilities, or residential                     •      the right to opportunities to
accommodation on the basis of a                                 career development and career
prohibited ground.                                              advancement without
                                                         •      the right to accommodation

If an employee is denied any of these      discriminatory. Other examples include
rights on the basis of a prohibited        actions of the police as a government
ground of discrimination, he or she can    actor. The Charter can also cover the
file a grievance, staffing complaint, or   government acting as an employer.
human rights complaint, as appropriate.    Normally, however, when a federal
Note that to establish a human rights      public service employee has a
violation there must be some evidence      discrimination complaint against the
that the denial of a right was due, at     employer he/she will rely on the
least in part, to a prohibited ground of   Canadian Human Rights Act rather than
discrimination.                            the Charter.

Note that “personal harassment” that is
not based on a specified human rights      OVERVIEW OF THE CANADIAN HUMAN
ground may still be prohibited by the      RIGHTS ACT
collective agreement or an employer        (Federal public service and federally-
policy even though no discrimination       regulated industries only - if you are
has occurred. For more information,        covered under provincial jurisdiction be
please refer to the Pocket Guide on        sure to refer to your province’s
Harassment, or contact your regional       legislation.)
office if you have questions about a
particular case.                           The purpose of the Act, as set out in
                                           Section 2, is as follows:

LEGISLATION                                The purpose of this Act is to extend the
                                           laws in Canada to give effect, within the
Employees of federally-regulated           purview of matters coming within the
employers are covered by the Canadian      legislative authority of Parliament, to the
Human Rights Act. Federally-regulated      principle that all individuals should have
employers include the federal              an opportunity equal with other
government and related agencies,           individuals to make for themselves the
federal crown corporations, and            lives that they are able and wish to have
employers in federally-regulated           and to have their needs accommodated,
industries such as banking,                consistent with their duties and
telecommunications, air transportation,    obligations as members of society,
and interprovincial transportation.        without being hindered in or prevented
Employees of provincially-regulated        from doing so by discriminatory
industries are covered under their         practices based on race, national or
province’s human rights legislation (for   ethnic origin, colour, religion, age, sex,
example, in Ontario, the Ontario Human     sexual orientation, marital status, family
Rights Code).                              status, disability or conviction for an
                                           offence for which a pardon has been
The Canadian Charter of Rights and         granted.
Freedoms applies to government
actions. For example, laws can be
challenged under the Charter if they are

Section 3 of the Act sets out the eleven     •     special leave or benefits for
prohibited grounds of discrimination as            female employees in connection
identified above.                                  with pregnancy or childcare
                                             •     special programs that are
Sections 5 to 14 set out what are                  designed to prevent or eliminate
discriminatory practices                           disadvantages by improving
                                                   employment opportunities in
                                                   relation to certain groups, for
For example, with respect to                       example employment equity
employment, it is a discriminatory                 programs
practice for an employer to do the
following things on the basis of a
prohibited ground:                           WHAT IS ACCOMMODATION / THE DUTY TO
•      to refuse to employ or continue to    ACCOMMODATE?
       employ an individual
•      in the course of employment, to       The duty to accommodate refers to the
       differentiate adversely in relation   obligation of an employer or service
       to an employee                        provider to take measures to eliminate
•      to establish policies or practices    disadvantages to employees,
       that deprive an individual or class   prospective employees or clients that
       of individuals of employment          result from a rule, practice or physical
       opportunities                         barrier that has or may have an adverse
•      to pay male and female                impact on individuals or groups
       employees differently who are         protected under the Canadian Human
       performing work of equal value        Rights Act or identified as a designated
•      to harass an individual               group under the Employment Equity Act.
                                             In employment, the duty to
Unions also cannot discriminate against      accommodate means the employer
individuals on the basis of a prohibited     must implement whatever measures
ground (Section 9).                          necessary to allow its employees to
                                             work to the best of their ability.
Sections 15 and 16 set out certain
exceptions. The following things are not     The duty to accommodate recognizes
considered discrimination according to       that true equality means respecting
the Act:                                     people's different needs. Therefore,
•      an employer’s refusal, exclusion,     employers designing workplace
       expulsion, suspension,                standards must take into account
       restriction, condition or             differences between individuals when
       preference based on a “bona fide      designing those standards.
       occupational requirement”
       (BFOR) (see section on “Duty to       Examples of standards that can be
       Accommodate”)                         discriminatory and may require
•      mandatory retirement at the           accommodation include:
       normal retirement age                 •      height requirements that may
                                                    exclude women

•      weekend shift requirements that       then it will not be possible to
       may exclude people of certain         accommodate and a failure to
       religious faiths                      accommodate will not constitute
•      physical requirements that may        discrimination. An assessment of undue
       exclude persons with disabilities     hardship takes into account factors of
                                             health, safety and cost to the employer.
If a rule, practice, standard, policy, or
physical barrier has the effect of           To be considered undue hardship, the
excluding or otherwise negatively            financial costs must be so great as to
impacting individuals or groups              alter the essential nature of the
protected under the Act (the 11              enterprise or affect its viability.
enumerated grounds), an employer has
an obligation to adapt or modify it,         In practice, most workplace
unless it constitutes a “bona fide           accommodations are not very
occupational requirement” (BFOR).            expensive. According to the Ontario
                                             Human Rights Commission, “over two-
                                             thirds of job accommodations cost
WHAT IS A “ BONA FIDE OCCUPATIO NAL          under $500, and many cost nothing at
REQUIREMENT” (BFOR)?                         all.”

In order for the employer to establish
that a requirement is a “BFOR”               REQUEST FOR ACCOMMODATION
•       it must be rationally connected to
        the performance of the job,          When a request for accommodation is
•       the employer must have adopted       made, the duty to accommodate
        it in the honest and good-faith      imposes certain obligations on
        belief that it was necessary in      employers, employees, and unions.
        order to fulfill that legitimate     Employers must take measures
        work-related purpose,                necessary to accommodate and adapt
•       and it must be impossible to         standards to individual needs and must
        accommodate the employee             not adopt or maintain standards that
        without “undue hardship”             result in discrimination. However,
If those three requirements are met, this    employers are not obliged to create
means that the employer has not              unproductive work, or to create the
discriminated against an individual and      “perfect” accommodation. Employees
the rule or standard can stand.              must communicate their needs and
                                             restrictions to the employer and must
                                             accept reasonable accommodation.
WHAT IS “UNDUE HARDSHIP ”?                   Unions must not block proposed
                                             accommodations and should facilitate or
It is important to note that some            assist when it is appropriate and where
hardship can be incurred by the              employees have asked for their
employer in fulfilling its duty to           assistance.
accommodate. However, if the hardship
incurred by the organization is “undue”

Case Scenario:                                      •      Can job tasks be “re-
Example of Accommodation in the                            bundled” to create a full
Workplace and bona fide occupational                       position?
requirement (BFOR): Factors to                      •      Can he be re-trained?
Consider                                     •      What would the accommodation
The employer has a requirement that all      •      Would it negatively affect the
social workers must hold a valid driver’s           health or safety of this worker or
licence. Employee A develops a visual               other workers?
impairment, and he can no longer drive.
What must the employer do?                   If the employer cannot find alternate work
                                             for this worker without incurring undue
If the employer simply applied the rule of   hardship because of health, safety, or
having a driver’s licence (which appears     cost factors, then the requirement to
to be a neutral rule), and terminated this   have a licence in this case is a bona fide
employee for failing to meet the job         occupational requirement and the
requirements, this would be discrimination   employer is not required to
based on the employee’s disability.          accommodate this worker. However, if
                                             alternate work can be found, even if it
Clearly, the requirement to have a licence   causes some hardship to the
would meet the first two criteria of the     company (or to other employees),
BFOR test (it is rationally connected to     then the company must
the job, and the employer adopted it in      accommodate this worker by
the good faith belief that it was            providing the alternate work.
                                             Keep in mind that the employee
However, the third question must be          requesting accommodation has
asked - can this employee be                 obligations also. He must cooperate with
accommodated? The company must               the employer in the search for alternate
consider alternatives The following          work by providing them with the
questions must be asked:                     necessary information about his
                                             restrictions, and by accepting a
•      Can the employee perform his job      reasonable job offer.
       with modifications? e.g taking
       taxis or public transit for work      The Union has an obligation also in this
       travel, etc...                        scenario to facilitate the accommodation
•      Can duties be re-organized or re-     process, and cannot block proposed
       assigned between the social           accommodations (for example, just
       workers to ensure that this worker    because some of the other employees
       can be accommodated?                  might complain that Employee A is
•      If the employee cannot be             getting “special treatment”). However, if
       accommodated in his current job,      there would be legitimate health and
       is there other work available that    safety risks to other workers as a result
       this employee can perform?            of a proposed accommodation, the Union
       •       Are there existing jobs?      should raise them.

HUMAN RIGHTS COMPLAINTS TO THE                    to pay damages for pain and
COMMISSION                                        suffering or special damages
                                                  where the employer has engaged
Individuals or groups of individuals may          in the discrimination wilfully or
file a complaint with the Canadian                recklessly (the Act sets out
Human Rights Commission in regards to             maximum limits for these types of
discriminatory practices. Complaints              damages)
must normally be submitted within a
year of the discriminatory act having
been committed. The Commission will        GRIEVANCES AND OTHER COMPLAINTS
then perform an initial assessment and     REGARDING DISCRIMINATION
seek more information. If the complaint
is accepted, the Commission will then      In the federal public service, as well as
give notice to the employer and request    in other jurisdictions, grievances can
a response. Further investigation is       also be filed regarding human rights
done and a conciliator may be              violations, including a failure to
appointed to try to resolve the            accommodate. Your collective
complaint. If the complaint is not         agreement’s “No Discrimination” clause
resolved, and the Commission               may be cited.
determines that there is merit to the
complaint, it may be referred to the       With the coming into force of the Public
Canadian Human Rights Tribunal for a       Service Modernization Act, the Public
hearing.                                   Service Labour Relations Board and the
                                           Public Service Staffing Tribunal may
If a complaint to the Tribunal is          hear complaints and grievances dealing
ultimately successful, the Tribunal has    with human rights issues. If an
the power to order remedies that are       employee in the federal public service
appropriate in the circumstances, which    files a grievance raising a human rights
can include:                               issue, the union must notify the
•      ordering the employer to cease a    Canadian Human Rights Commission at
       discriminatory practice             the same time as the grievance is
•      ordering the employer to provide    submitted.
       a right, opportunity or privilege
       that was denied to the              A grievance and a complaint to the
       complainant as a result of the      Canadian Human Rights Commission
       discriminatory practice             can both be filed at the same time.

•     ordering the employer to provide
      compensation for any lost wages,     WHAT IS THE ROLE OF THE UNION?
      or other expenses or costs
      incurred by the complainant that     As indicated earlier, unions must not
      resulted from the discriminatory     interfere with proposed
      practice                             accommodations (unless they would
•     in more extreme cases, the           cause undue hardship) and should
      Tribunal can order the employer      facilitate or assist when it is appropriate

and where employees have asked for          with management and Human
their assistance. Unions also have an       Resources.
obligation to ensure that the collective
agreement does not contain any              Where members have been
discriminatory clauses or clauses with a    discriminated against or have been the
discriminatory effect.                      victim of harassment based on a
                                            prohibited ground, stewards should
The Union has a general role to serve       encourage the member to file a
as a watchdog respecting the duty to        grievance or human rights complaint.
accommodate and to ensure that the          The wording of a human rights
employer is maintaining a work              complaint or grievance is important. As
environment that is free from               a first step, contact your PIPSC regional
discrimination. A work environment          office to seek advice, assistance and
where employees are not included or         representation from an Employment
are isolated, bullied or harassed, based    Relations Officer to discuss the case
on racism or prejudice is an unhealthy      and the wording of the grievance or
workplace for everyone.                     complaint before it is filed.

                                            Human Rights training is available for
PIPSC members who believe they are          stewards through the Institute. For
victims of discrimination and/or who feel   more information, please contact the
they may have a human rights                National Office or consult the Web site
complaint or grievance should contact       for upcoming courses.
their steward to seek advice and
representation if needed.
                                            ADVANCING HUMAN RIGHTS IN THE
If you are a person with a disability       WORKPLACE
seeking accommodation from the
employer and you have been denied           The Institute is actively involved in
accommodation, speak to your steward.       promoting human rights in the
                                            workplace and in Canadian society as a
                                            whole. Human rights issues are
WHAT SHOULD STEWARDS DO ?                   addressed by the PIPSC Committee on
                                            Human Rights in the Workplace
Stewards should assist members with         (CHRW), which is a sub-committee of
accommodation requests and return-to-       the Board of Directors. The mandate of
work requests. Stewards can work with       the CHRW is to monitor issues in the
the employer and the individual member      field of human rights, coordinate and
to find accommodation and ensure            distribute information on human rights
monitoring and implementation of            and provide an ongoing forum where
accommodation measures. The                 human rights issues can be discussed
steward can express support by              and studied.
accompanying the member at meetings

Over the years, the Institute has trained
hundreds of stewards on human rights
and employment equity issues. A
network of human rights and
employment equity activists is currently
being developed. For more information
on how to get involved, consult the
PIPSC Web site (click on “Human
Rights”) or contact your PIPSC regional