Resolving Complex Disputes: An Advanced Session

The basic principles of human rights legislation seem simple enough, and the underlying goal of equality enjoys almost universal support. However, applying human rights legislation in the real world can be complex and contentious. With even the legal test for finding a prima facie case of discrimination being debated, how can workplace parties deal with more complex issues? How can they strike the appropriate balance between the conflicting human rights of two or more employees? What is the line between legitimate expectations regarding employees’ attitudes and behaviour and discriminatory standards? In this session, Lancaster’s panel of experts will address these issues and the following questions:

• Human Rights in Conflict: How should workplace parties handle requests for accommodation when the accommodation appears to infringe upon the human rights of other employees? For example, what can be done if a request for religious accommodation conflicts with gender equality? Must employers discipline employees who express discriminatory opinions or beliefs based on their religion? Can the employee be disciplined if the behaviour occurs and/or the beliefs are expressed in off-duty hours?
• Cultural Discrimination: Do the prohibitions against discrimination based on ethnicity or place of origin mean that discrimination against cultural practices and attitudes is also prohibited? Do they also make requirements to speak English at work discriminatory? What about requirements for Canadian work experience?
• Intersecting Grounds: Can the combination of two or more protected grounds, for example religion, place of origin and sex, create protection for cultural practices or attitudes? Do prohibitions against discrimination on family or marital status make the disabilities and religions of an employee’s family members relevant in accommodation requests? How can employers and unions guard against creating rules or policies that disadvantage people based on the interaction of several personal characteristics? Does discrimination against an employee based on more than one protected ground compound the harm and result in higher damages?
• Other Controversial Questions: Is it necessary to establish that a distinction based on a prohibited ground perpetuates existing stereotypes or disadvantage? Is the identification of a comparator group necessary to establish a prima facie case of discrimination? How should the comparator group be chosen? Does the concept of reverse discrimination exist in Canadian law? When will ameliorative programs, such as disability insurance, which aim to give benefits to a disadvantaged group, be discriminatory because of under-inclusion or because they discriminate against a subset of that group? When will organizations be permitted to discriminate on grounds such as religion or gender?