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Human Rights

VIEWS: 12 PAGES: 30

									Human Rights


   Chapter 5
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
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
Terminology
 Stereotyping – an oversimplified, false, or
  generalized portrayal of a group of people
 Prejudice – preconceived opinion based on a
  stereotype or inadequate information
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
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
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
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
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
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
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
         Administering Human Rights
        Legislation – Filing a Complaint
   Employment discrimination example
       Need to establish a prima facie case (legally convincing
        unless disproved by contrary evidence)
        1. You were qualified for that particular employment
        2. You were not hired; and
        3. 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.
Complaint Process
 See chart on page 116
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)
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
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
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
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
         Thedecision of the commission may be
          appealed and sent for judicial review
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
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
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
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
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
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
 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
 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
 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
 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
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
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

								
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