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EDITOR'S BLOG
Aug 19, 2014

A hierarchy of human rights? Why not

Refusing to work or deal with women should never be an option on the table
    

By Todd Humber

There is no so-called “hierarchy of human rights” in Canada. But employers could sure use one when it comes to navigating the complicated and confusing realm of competing human rights.

We’ve seen a couple examples recently of organizations fumbling and stumbling in an effort to do the right thing when it comes to accommodation.

The issue made national headlines in recent months in the wake of a decision by Toronto’s York University that a male student who didn’t want to complete group work with female students could opt out. In that case, the professor teaching the class refused to allow the student to opt out — and the student completed the work without incident.

It popped up again earlier this month when the CBC reported that Canada Border Services Agency (CBSA) allowed a group of Hindu priests to avoid screening by female border guards on their arrival at Pearson International Airport in Toronto to comply with their religious beliefs.

A female officer said she was told before her shift not to switch work stations without first asking a supervisor. She said she was outraged, as were her colleagues, that such a request would be considered by CBSA management.

“The nature of the request is offensive to me as a woman,” she told the CBC. “You are a guest in my country. What do you mean you don’t want to deal with me because I’m a woman? We are considered law enforcement officers. I can’t imagine any police force entertaining something like that.”

A hierarchy? Why not?

It’s understandable why human rights commissions and legislative bodies would be loathe to create a hierarchy of human rights.

It’s a veritable minefield, but it seems like some rights should carry more weight in our society than others.

Gender, race and sexual orientation would be at the top of that list — you know, the things you have absolutely no control over. A woman didn’t choose to be a woman. A white person didn’t choose to be white. A gay person didn’t choose to be gay.

It seems that those rights should trump others, including religious beliefs. Not to disparage anyone’s beliefs — far from it. Employers bend over backwards — something they definitely should be doing — to accommodate religious beliefs.

But when someone says they don’t want to work with women, or deal with women? That’s a dealbreaker. That’s the point where courts, tribunal and legislators should draw the line. That’s where the so-called bar of undue hardship should be — your request to refuse to deal with someone, or work with someone, or accommodate someone because of gender, race or sexual orientation should be rejected every time.

We can all agree that every protected ground under human rights legislation is important. But it shouldn’t be taboo to point out that some rights carry more weight than others.

Todd Humber is the managing editor of Canadian HR Reporter, the national journal of human resource management. He can be reached at todd.humber@thomsonreuters.com or visit www.hrreporter.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.
    
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COMMENTS
re: Human rights are subject to limits
Wednesday, August 27, 2014 3:42:00 PM by arthur
Point taken - however in the examples in this blog there were no human sacrifices made. The same argument can be said of sex and gender - you do not have full rights to do as you please either.
RE: Perspective
Wednesday, August 27, 2014 3:39:00 PM by Arthur
No sorry I disagree - your rights as a woman aren't being affected here - is it your "right" to impose on other people where religion plays a role? In these cases they are not. So yes with all due respect it is blowing things out of proportion.
Human rights are subject to limits
Tuesday, August 26, 2014 3:12:00 PM by Brian Kreissl
I would just like to point out that even the Canadian Charter of Rights and Freedoms (which doesn't generally apply to private sector employers) recognizes that human rights have limits. According to the Charter, fundamental human rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

This means that human rights are not absolute. Rather than trying to get into a debate about which human rights take precedence over others, perhaps we should just reframe this principle as being one of "you are entitled to your rights as long as they don't infringe upon the rights of others."

Rights like freedom of religion are not absolute and are subject to limits. This is an extreme example, but if someone's religion required them to perform human sacrifices, then the law would quite correctly step in and limit that person's right to practice his or her religion in the way they want to.
Perspective
Monday, August 25, 2014 2:55:00 PM by Allison
Arthur - Todd is pointing to two very real and troubling examples where women were pushed aside, or at least attempted to be pushed aside. It's not blowing it out of proportion.

These are real issues of discrimination. I think my rights as a woman trump your religious rights when it comes to a secular workplace.
Actually, people do choose...and what happened to importance of religion?
Monday, August 25, 2014 10:49:00 AM by Arthur
Why would gender, race and sexual orientation top the list and not religion and culture? And is it really true gender and sexual orientation are not chosen? That statement is inaccurate as we've seen many cases of people switching genders and choosing to be gay whether early or later on in their lives. It's a preference/lifestyle choice. Just like religion is a choice as well. Yes, you can be "born" into a faith, but you have the ultimate control to change that at any time.

The bottom line is, as Canadians, we must respect everyone's religious preferences and as far as I can see this primarily has to do with the sex of the individual they are dealing with - I'm sure this is not a difficult thing to accommodate. Let's not blow things out of proportion.
Point taken
Monday, August 25, 2014 10:38:00 AM by Todd Humber
I appreciate the comments critical of my viewpoint, though I want to point out that a) this is an opinion piece, not an article and b) I was careful to state that there is no hierarchy and that all rights are important.

In writing this, I was trying to point out that, for employers, it can be confusing when juggling competing human rights claims. But as the York U case showed, there does seem to be some consensus — in the public anyway — that some rights should carry more weight than others. (Again, not suggesting they actually do from a legal standpoint.)

This is not to say other rights are not important and are not worthy of accommodation. But if an employer is presented with a situation where an employee refuses to work with a co-worker solely because she is female based on his religious beliefs, a decision has to be made. In my opinion, common sense dictates that this request should not be accommodated. Men and women are equal, and should be treated thusly.

That is not to suggest his religious beliefs are unimportant and not worthy of accommodation. But in that situation, the rights of the woman should trump them.

In the end, these things will undoubtedly be decided on a case-by-case basis. That's generally how the law works in the employment realm. But perhaps it is still taboo to even suggest that some rights may carry more weight than others.
A hierarchy of human rights? Why not
Sunday, August 24, 2014 9:48:00 PM
It's unfortunate that this article was not grounded in human rights law. Because if it was, you would not be able to create any such hierarchy of rights. No human rights trump any other rights, no matter how much you personally disagree with that. I too am shocked that the HR Reporter has even published this article.
No hierarchy of human rights - because there shouldn't be
Sunday, August 24, 2014 9:06:00 PM
I agree that "There is no so-called 'hierarchy of human rights' in Canada."

But I don't agree that there should be one. The Ontario Human Rights Commission does a very good job off offering supports to organizations to help them navigate "the complicated and confusing realm of competing human rights."

I am shocked that a human resource newspaper would provide such misguided information and opinions to its readers - a group which is already woefully ill-informed about human rights.

To even suggest that some rights carry more weight than others suggests that some groups - who experience a great deal of discrimination in this country - are less deserving of protection than others. Certainly an idea that does not have a place in a human resource magazine.
A hierarchy of human rights? Why not
Tuesday, August 19, 2014 5:41:00 PM by Bob
Hi Todd,

I find your opinion piece about how the Canadian Human Rights Act, or the Charter of Rights and Freedoms, to be changed to better reflect your preferences quite naive. I am happy that you are not in a position to make these changes. Your personal opinion that freedom of conscience is not newsworthy. This article is not what I have come to expect from HR Reporter.

Bob