When discussing workplace complaints and conflicts with clients or while delivering training, I regularly hear that the most challenging situations to address are those which seem to involve competing individual rights. Employers are unsure how to proceed when both parties seem to be making a valid argument under the organization’s policies or the Ontario Human Rights Code. We hear about examples of competing rights situations in the culture with increasing frequency:
- A Muslim barber who denied service to a female customer on religious grounds
- An accused’s concern about a right to a fair trial when a Muslim woman wished to testify wearing her niqab
- A Christian clerk’s refusal to issue marriage licenses to same-sex couples
- A professor refusing to wear a microphone to accommodate a hearing-impaired student based on Hindu beliefs
- An individual’s right to freedom of expression in the form of posters alleged to promote hatred against homosexuals
In a multicultural society such as ours, the list could go on and on in a seemingly endless number of configurations.
The Supreme Court of Canada, when rendering decisions relating to bullets 2 and 5 above, endorsed a process of balancing individual rights based on the particular circumstances of the situation, but this can feel easier said than done for employers that lack the SCC’s experience and expertise.
A great place for employers to start is the Ontario Human Rights Commission’s Policy on Competing Rights (the “Policy”) which offers employers a decision-making framework. The Policy proposes first identifying and recognizing the rights at play. Speak to the employees and determine what their claims are about. Do their claims connect to legitimate rights, and does the situation amount to more than a minimal interference of that right?
Next, conduct an analysis to determine whether there is an outcome that will allow for each individual’s enjoyment of their right, or whether a next best solution exists that respects the importance of both rights. For example, if I have a religious objection to attending team meetings with you and your guide dog, could you and I “attend” the meetings by videoconference on an alternating basis? In some cases, alternate dispute resolution processes involving both employees can lead to effective solutions.
In some cases, a solution or compromise may not be available. In some cases, the organization may simply need to make a principled decision that best complies with the expectations of policies, the Code and other legislation. Here again, the Policy offers guidance, in the form of a series of legal principles relating to competing rights:
- No rights are absolute
- There is no hierarchy of rights
- Rights may not extend as far as claimed by the individual
- 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.
These principles can assist an organization trying to reach a decision. For example, the fact that the core of a right is more protected than its periphery explains why the Code would not require a religious official to officiate a same-sex marriage but would likely provide little support to a bakery that refused to bake their wedding cake. Similarly, where an individual is asserting that the actions of their colleague has the potential to create a poisoned work environment, a consideration of the extent of the interference will assist the employer in concluding that a potential violation is insufficient to tip the balance.
Balancing competing rights is never an easy task. Often the individual characteristics and beliefs leading to such claims are deeply held and intensely personal. The potential for emotional reactions and conflict is high. Given this context, a clear and transparent decision-making framework is an employer’s best tool. The message to employees is that they were heard and that their positions were considered as part of a balancing exercise. While it might not be possible to make everyone happy when these situations arise, if employees feel that they have been treated fairly there is a far greater chance of a successful outcome.