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Hopping over human rights

Discrimination and political correctness can both cause tension in the workplace
REUTERS/Bogdan Cristel

By Jeffrey R. Smith

It is a basic tenet of human rights that individuals should be free from discrimination. Canada has human rights laws that protect people from specific areas of discrimination in employment and their daily lives. One of those grounds is religion — freedom of religion is another basic tenet of human rights and our society.

But how far should such protections go? What really constitutes discrimination? Some feel there is too much guarding of perceived human rights, to the point of overdoing it with political correctness — hence movements decrying the “war on Christmas” with the slogan “It’s ‘Merry Christmas’ not ‘Happy Holidays.’” It’s especially important to find the right balance in the workplace, where contented employees are productive employees — not to mention the risks for an employer of being found to have a discriminatory workplace.

If someone is offended, are they being discriminated against? Is taking offense at something creating a disadvantage for that person? What if there’s only a potential of someone being offended, but no one actually is? Does that change the nature of an act or material?

Earlier this year, there was an interesting situation at a Canada Post facility that involved the grey area of human rights versus political correctness. A manager, looking for a fun activity for employees, organized a contest in recognition of the Easter holiday coming up. He posted a notice wishing employees a “happy Easter” and said there were 10 Easter eggs hidden thoughout the mail depot. Employees who found any of the eggs could bring them to the manager and exchange them for gift cards. The manager organized the event and purchased the eggs and gift cards himself — Canada Post had nothing to do with it.

However, the union filed a grievance of the event. One of its principal complaints was that the manager’s event was insensitive to employees who weren’t Christian and didn’t celebrate Easter. Such employees weren’t forced to participate, but if they chose not to because of their religious beliefs, they wouldn’t get the same opportunity to receive the gift cards. This constituted discrimination based on religion against non-Christian employees, which was prohibited under human rights legislation.

Perhaps unsurprisingly, an arbitrator dismissed the grievance. Though the Easter egg hunt was loosely tied to Easter, such activities are widely considered to be secular parts of the holiday. There was nothing in the activity that involved actually celebrating the Christian holiday of Easter, so even non-Christian employees who participated would not be forced to celebrate a different religion. Anyone who was still offended — well, it’s impossible to anticipate every possible person who might be offended. Either way, access to an opportunity to win a gift card wasn’t a significant disadvantage to someone who elected not to participate to constitute discrimination, said the arbitrator: See Canada Post Corp. and CUPE (508-12-00108), Re, 2016 CarswellNat 4888 (Can. Arb.).

It’s also important to note that the union’s grievance was pure speculation — no employees actually complained about the event. So this may be a case of the union taking political correctness too far. Freedom from discrimination doesn’t have to mean hiding all evidence of religions — just making sure people of all religions are treated fairly.

Both discrimination and political correctness are the negative ends of a spectrum. The key for employers is to find the right balance in their workplaces.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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