Competing Human Rights
York University has received a lot of negative media attention because it told a male student who had signed up for an on-line course that he was not required to attend an in-person session because he said his religion precluded him from being physically present with women.
The issue has been framed in the press as a competing rights issue: religious rights vs. gender rights.
What are competing human rights?
A competing human rights situation exists when two or more legally protected rights are in conflict and at least one is based on human rights legislation.
How are these conflicts resolved?
The Ontario Human Rights Commission has produced a policy for competing human rights outlining the fundamental legal principles found in the jurisprudence. While this policy does not have the force of law, it is relevant in understanding competing human rights issues. In short, the policy outlines that there is no hierarchy of rights and that each situation will be assessed independently. While all rights should be protected, only situations where an actual burden on a right will trigger a conflict.
In assessing competing rights claims, the Human Rights Tribunal will determine whether a situation involves legitimate rights, how significant the interference with a right is, and whether there are solutions to protect both rights or come close.
Applying the principles to the York episode
If the male student’s request was denied he could have filed a complaint under the Ontario Human Rights Code (“Code”).
In this case, the competing right could be described as the right of York female students to be free from discrimination while receiving services. However, one must query whether there was an adverse impact on gender rights in this case. The female students registered for the course were able to attend the group session and be evaluated whether the male student attended or not. It is possible that the Tribunal would have found that the right of the female students to be free from discrimination was not even triggered by the situation. A more obvious competing rights scenario was a situation last year where a woman was denied services at a barbershop because the staff believed on religious grounds that they could not touch a woman who was not in their family.
York University may have made the correct decision in law, but it did not anticipate the hue and cry it created. Had York University refused to accommodate the student, then the student would have been forced to decide whether or not to file a complaint under the Code. He would have to prove that he believed his religion precluded him from associating with women and when deciding whether to file a complaint he would have also likely considered what remedy he would have received. In this case, we believe he would have received a nominal monetary award.
If the male student had been denied accommodation and won a case under the Code, would people have thought less of York University? The episode reveals that employers and service providers faced with a competing rights situation like this, are often in a no-win situation. Inevitably, critics will consider one group’s rights to trump another.
For more information on human rights, see our other blogs.
If you believe that your human rights have been infringed, and would like to speak with a lawyer, contact us at [email protected] or 647-633-9894.
Are clauses that purport to waive an employee’s years of service for the purposes of severance/notice pay enforceable? It’s all important when your company is sold. Here is what to look for.read more
As we have written before, an employer may generally terminate an employee for any good business reason, as long as it provides the employee with adequate notice of termination (or pay in lieu of notice). Failure to provide adequate notice results in a wrongful...read more
If you have lost your job and need temporary income support, do you know what to do? In Canada, you can apply for Employment Insurance (“EI”) for partial income replacement from the Federal government. To learn about the different types of EI and whether you would be...read more