What if two rights such as freedom of religion and freedom of sexual orientation conflict in a workplace? Is there ever middle ground?
As the workplace becomes more diverse we find a reduction in groupthink and an increase in innovation, but HR could also face increasing conflict between different protected groups. For example, one employee with a mental illness could say something that another employee finds harassing. So what do you do next?
It’s already happened in Canadian workplaces, and last year the Ontario Human Ontario Human Rights Commission released a policy on Competing Human Rights stating that not all claims are equal before the law.
Unfortunately it’s not always easy to know which of two rights will be considered more important.
Employment lawyer Brian MacDonald, from Filion Wakely Thorup Angeletti, said more cases are likely to come up and at the moment the leading case centres on a conflict between a Christian organization and a lesbian employee.
When an employee alleged she suffered harassment after her employer discovered her sexual orientation, not-for-profit organization Christian Horizons suggested it fell under the “special employment” provisions, which gives religious organizations that are aimed at people who are also religious some leeway in employment equality. However, the court found that because the group’s primary purpose was not providing services to other Christians, it did not apply under the code.
In another recent case the right to protest was pitted against the right of disabled people to access the care they needed when a union started protesting outside a group care home. In this case the union’s rights were upheld, because the unions were not service or accommodation providers and could not be responsible for an infringement of a right based on access to services or accommodation.
“Unfortunately there’s no concrete guideline for employers. It’s a thorny issue and you’re going to have to be aware of it right away and be aware of the sensitivities involved,” MacDonald said. “As a best practice, any time someone raises an issue like this you have to react with sensitivity and with respect otherwise you will have trouble down the road. When an issue like this arises, regardless of your personal views, you sit and listen and investigate like you would any other issue.”
Although not an employer issue, an upcoming case where a Muslim-owned barbershop refused to cut a woman’s hair will have to weigh religious freedom against gender discrimination. MacDonald suggests that if this were a case where the barber was an employee, rather than the owner, then the duty to accommodate would kick in because a different employee could cut the customer’s hair.
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“I think where there’s a clear cut ability to accommodate it will come down to that.”
Getting expert advice early could help avoid future problems, even if they can’t help you avoid a tribunal. When you’re looking at competing rights it can be a matter of which side takes you before the commission, rather than finding a way to avoid it.
At a minimum it’s worth calling the tribunal for guidance, MacDonald said. And having the right policies in place will make the process much smoother.
“You would be able to show you were taking the complaints seriously. You have to have a policy in place for something like this. If someone comes to you with a human rights complaint of any kind you can’t be flailing in the dark, you have to have a reporting and investigating system.”
Read the commission’s policy: http://www.ohrc.on.ca/en/policy-competing-human-rights
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