No easy answers for competing rights cases

Conflicts must be considered on case-by-case basis: Experts
By Liz Bernier
|Canadian HR Reporter|Last Updated: 02/10/2014

A male university student asks to be excused from working with female students on a group project, citing religious reasons. The request is met with public outrage, incredulity — and the school administration’s order to accommodate him (an order that went ignored by his professor).

It’s not the first time tensions have flared in the face of a tricky competing rights case — the Ontario Human Rights Commission even developed a policy on competing rights, for just such cases.

But the recent case involving York University in Toronto stirred up a lot of debate about how these cases should be handled — and what should happen when they arise in the workplace.

“It’s one of these situations where you could absolutely see it arising (in the workplace),” said Katherine Ford, a lawyer at Sherrard Kuzz in Toronto.

“When you’re thinking from an employer’s perspective… certainly you have an obligation to accommodate people who have needs that are based on one of the protected grounds, so be that religion, disability — any of those accommodation-related needs.”

But employers must realize none of those rights are absolute, so there really is no easy answer when two protected rights clash.

“When we’re dealing with the issue of competing rights, there isn’t really a one-size-fits-all or cookie-cutter approach, because you really are looking at the individual circumstances,” said Ford.

No hierarchy of rights

There are bound to be some strong emotions when dealing with a competing rights case and, often, people feel certain rights should clearly trump others.

But the law doesn’t work that way, said David Doorey, associate professor in the school of human resource management at York University in Toronto.

“Critics of York’s decision to grant the accommodation believe mistakenly that the law creates a hierarchy of rights, with gender rights trumping religious rights. That is false,” he said.

“The law deals with conflicting rights through the device of undue hardship — what actual harm to the employer and co-workers will be caused by the requested accommodation?”

In light of the legal requirements, it’s important that employers never have a “knee-jerk” response to a request, said Christopher D’Souza, an equity consultant based in Toronto.

“When I work with agencies, I get them to understand that two key components (according to the Ontario Human Rights Commission) are that no right is absolute, and there is no hierarchy of rights,” he said.

“There’s been a lot of knee-jerk reaction to the York case because they’ve been thin-slicing the reality. They’ve been taking one component of the case and then jumping to conclusions around overt sexism… Institutions and agencies should consult with all the relevant players... who have some kind of knowledge component around the specific case.”

And consulting those with specialized knowledge on the subject is not always as straightforward as it sounds, said D’Souza.

“If it’s a faith case, a faith accommodation can only be made by a recognized faith practitioner for a recognized faith practice. And while that sounds like that should be simple, it’s not necessarily — one rabbi might say one thing and then another rabbi might say something a little different.”

But consulting an authority on the subject is crucial, both in fairness to the employee making the request and, sometimes, to determine whether the request is sincere.

“The employee’s belief in the need for accommodation must be sincere for the code to apply, just like an employee claim of disability must be verifiable. Employees can’t just make stuff up and claim it’s a religious belief,” said Doorey.

Is accommodation request a right or preference?

The first consideration when weighing two competing rights is to make sure the accommodation request is actually based on a right that’s a protected ground under the Human Rights Code, said Ford.

“One of the things we (say) first is ‘Let’s make sure that we are actually dealing with two competing human rights.’ There’s a distinction between a preference (and a right)… First of all, what you want to do is you want to determine what the individual’s actual needs are — not their preferences, but what their actual requirements are,” she said.

“If you have an example like in the York situation, where somebody is saying that they can’t meet with women, essentially, I think first of all as an employer, you’re going to be delving fairly deeply into trying to ascertain is that truly a religious requirement or is that a preference here?”

To find out, employers might begin to consider asking for proof from a religious authority — in much the same way they require a doctor’s note for claims of a disability, said Doorey.

“An interesting question is whether employers can demand a letter from a religious expert confirming the belief is genuine, like employers can demand a doctor’s letter confirming disability. I think an employer can do this. But I’m not aware of a case that deals directly with that point,” he said.

“For example, if a white employee claimed that his religion forbids him from working with black workers, could an employer demand an expert letter confirming that this belief could reasonably be gleaned from the religion? I’d think so, but that’s a question.”

Ford agreed that asking for some form of authoritative proof — as employers do with disability cases — may be wise.

“Employers are probably the most comfortable with talking about accommodation in a disability context,” she said.

“So we’re very comfortable asking for medical documentation about disabilities… well, if you have a request that may deal with religious issues or religious requests, it’s absolutely acceptable to be asking for some type of authority or some type of objective backing for the position that’s being taken by an individual.”

Educating employees to avoid backlash

One of the more difficult aspects of a competing rights case is the fact they can often stir up a strong emotional response among employees, said D’Souza.

“It does elicit some emotions when we talk about identity and marginalization, sexism, homophobia,” he said.

“The problem with competing rights is that there’s often the possibility that one right looks like it trumps another… So I would recommend that once a decision is made, there be some potential communication that goes out that gives some background to the rationale to kind of buffer some of that potential backlash.”

It’s important to maintain open and clear communication with employees — ideally before the decision has been made, said Ford.

“That’s when sitting down with employees and talking to them about what you’re doing and why you’re doing it is so important. And involving employees before the decision has been made about what you’re going to do is really essential,” she said.

“So a lot of it comes down to… discussions with employees, collaborating on solutions and then education — on both ends.”

It’s extremely important for HR departments to be proactive, said D’Souza.

“If you can really have the whole institution understand the human rights reality, there’s less potential for backlash.”

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