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Human Rights fundamental rights and freedoms to which all people are entitled Discrimination treating a person unfairly or unequally because of his or her race, religion, ability, etc. ◦ Even though in Canada we have better laws, several groups continue to experience discrimination Example: older people are still challenging compulsory retirement
Protection The Charter of Rights and Freedoms doesn’t provide legal protection for citizens if they are discriminated against by other individuals or by private organizations Human rights code and the Quebec Charter of Rights and Freedoms – protect individuals from prohibited discrimination
Stereotyping – can be defined as creating an oversimplified or generalized portrayal of a group of people (usually ethnic or gender jokes) Prejudice – preconceived opinion based on a stereotype or inadequate information (prejudging someone)
Administering Human Rights Legislation
Who settles concerns? Human rights commission is a group of people appointed by the federal or provincial government to administer and enforce various human rights codes and make decisions about complaints ◦ Most complaints settled by commissions ◦ Few go to adjudicator, board of inquiry, or human rights tribunal ◦ Some provinces go directly to board or tribunal
To Avoid a HR Complaint, an employer must prove: 1. The job requirement is a ‘bona-fide occupational requirement’- It is necessary for the safety, efficiency or economy of the company 2. The person from a protected group cannot be accommodated without undue hardship to the employer
Accommodation (in employment)to adapt, adjust or eliminate existing job conditions & requirements to enable a person to carry out the essential duties of an activity or job Undue Hardship- Accommodation would alter the essential nature of the activity or business, affect economic viability or pose a substantial health or safety risk.
Filing a Human Rights Complaint: Inquiries are completely confidential Inquiries must follow procedures outlined in HR Code of each province (package) It is up to the accuser to prove your case In Ontario, a complaint must be filed w/in 6 months of the last incident involving the alleged discrimination
Complainant: Person making an allegation of discrimination Must complete a package of info to complete (describe incident) Respondent: Person or organization that the complainant alleges to have discriminated against him or her
For Employment Discrimination Complainant Must Establish. . a) Prima Facie Case - legally convincing unless disproved by contrary evidence During hiring as an example, The Complainant Must Prove: 1. You were qualified for the particular employment 2. You were not hired 3. Someone no better qualified than you was subsequently hired – someone who lacked the distinguishing feature that represents the gravamen b) Gravamen (main grievance) - the grievance, or main cause of an accusation
Remember! An employer is allowed to justify their choices by: - Identifying a Bona Fide Occupational Requirement - Providing accommodation until Undue Hardship
Human Rights Commission Complaint Process (page 139) 1. Complaint you submit your complaint and it is reviewed by the commission 2. Response if accepted, a copy of your complaint is sent to the respondent for reply 3. Reply a copy of the respondent’s reply to your complaint is sent to you
4. Mediation an attempt is made to work with you and the respondent to settle the complaint 5. Investigation where mediation is not successful, an investigation into your complaint may take place. 6. Report a report of the investigation is sent to you and the respondent
7. Conciliation if evidence supports your complaint, conciliation is attempted 8. No settlement if the complaint is not settled, it is reported to the chief commissioner 9. Hearing your complaint may be heard by an adjudicator, human rights tribunal, or board of inquiry
Role Of HR Commission’s have a duty to offer a response to all complaints that are properly filed. Complainants are informed by the commission if their complain is intra vires to the provincial code. The commission then serves the respondent with the complaint, and formally responds to the allegations of discrimination.
Dismissing a complaint Human rights commission may dismiss complaint Some reasons include: ◦ ◦ ◦ Interest of individual will not be served No merit No significant issues Dealt with already Complaint in bad faith/improper motives ◦ Time limit varies from province to province – 1 year is common
Methods of Resolving HR Complaints a) Mediation Intervention btwn conflicting parties that promotes compromise or settlement of the dispute b) Investigation services If no settlement is reached in mediation – formal investigation by human rights officer (gather information, inspecting documents, records, interviewing witnesses Or
C) Conciliation Bring conflicting parties to a resolution through an arbitrator to resolve their differences It is more forceful, as they try to force a decision
Hearing a case If no resolution is reached, case can go to adjudicator, board of inquiry, or human rights tribunal
Dismissing a HR Complaint: Main Reasons for Commission’s Dismissal: Complaint is trivial, frivolous or made in bad faith Complaint is not w/in the jurisdiction of the commission Complaint is filed more than 6 months from incident A complainant has 15 days to appeal decision to formally request a new trial; a commission can turn down the appeal.
Available Remedies: Order the respondent to stop the discriminatory practice. Compel the respondent to issue a letter of apology Order the respondent to pay the complainant for mental anguish and/or for any losses suffered in pay or benefits Compel the employer to give the complainant back his or her job or grant the denied promotion Require the organization to provide human rights & antidiscriminatory training for all employees + change policies to become less discriminatory.
Page 143 – looking at a case example Tahmourpour v. Royal Canadian Mounted Police and answer question 1+2 Page 143 #5 a-b Read page 140 and answer #1, 2, 3
Now It’s Your Turn…. . In small groups, you will be required to act as the HR commission that is making the final decision for a case involving a human right violation(s). Please identify the following factors in rendering your judgement: ◦ Identify the human rights issues and concepts raised in the case study (i. e. relation to OHRC, type of violation) ◦ Identify the gravamen; does your case meet the prima facie threshold? ◦ Render a judgement for the case. Ensure to identify any appropriate remedies.
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