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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.

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Todd Humber

Todd Humber is the publisher and editor-in-chief of Canadian HR Reporter, the national journal of human resource management. Follow him on Twitter @ToddHumber
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9 Comments
  • 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.