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Friday, January 8, 2021
Understanding Human Rights Laws for Businesses and Organizations: Avoiding Human Rights Complaints, Damages & Other Harm to Your Organization Related to Mask Mandates
Disclaimer: I am not a lawyer. I am a public interest advocate, social worker, writer, and publisher. I will provide an introduction to human rights legislation for businesses and organizations using British Columbia as an example. Please seek legal consultation with local business and employment lawyers to ensure your business and organization is acting in compliance with human rights, and other laws in your jurisdiction.
Introduction
In this article I will discuss human rights legislation and information to help business owners across Canada understand their legal duties regarding human rights laws and their duty to accommodate individuals with mental and physical health disabilities with respect to mask orders, policies, and exemptions. I will use British Columbia's legislation and resources as an example to illustrate how this applies at the community, business, and organizational level.
Many businesses, and organizations in Canada have been implementing masking mandates, while provinces have introduced masking orders under provincial legislation. If these policies, orders, or rules do not include exemptions for mental and physical health disabilities then they violate provincial and territorial human rights legislation.
Businesses and organizations that fail to honour mask exemptions and provincial orders are engaging in unlawful conduct. This leaves them at risk and vulnerable to legal action in the form of human rights complaints through human rights tribunals, or commissions in the respective province. This conduct could also leave organizations open to other forms of complaints, such as licensing inspections, and other investigations.
Business owners and their employees must ensure the human rights of customers, or visitors are respected. Failure to act in compliance with human rights laws can lead to expensive, time intensive, and damaging human rights cases against business owners, and their employees.
What Organizations Do Human Rights Laws Apply To?
It is important to understand what laws apply to different organizations in Canada.
Provincial and territorial human rights laws apply to private businesses, and organizations; governmental and public sector bodies; not-for-profit, community-based; and non-governmental organizations (NGO's).
The Canadian Charter of Rights and FreedomsONLY applies to public sector, municipal, provincial and federal governmental organizations. For example, city, provincial/territorial and federal governmental ministries; health authorities providing community-based care, hospitals, and residential care homes; provincial car insurance organizations; Crown corporations; and workers compensation boards.
Protected grounds of discrimination
The Canadian Human Rights Act (1985) describes several Prohibited grounds of discrimination under sec. 3:
3(1)For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
Note:This federal Act only applies to federal government organizations. However, the protected grounds found in the legislation of each province and territory in Canada are similar to those found in this legislation.
Find Human Rights Legislation and Organizations Where Complaints Are Filed in Your Province/Territory
All private businesses, and organizations (B/O) in Canada are required to be compliant with the human rights legislation in their province, or territory (or the federal Act).These B/O's must not discriminate, or refuse service, or access on the protected grounds covered under the law.
Most human rights legislation in each province also has sections related to signage to ensure that signs, posters, and other things that are displayed at a business, or organization are not discriminating against people who have protected status.
Duty to Accommodate
All B/O's are required under human rights laws to accommodate individuals with mental or physical health conditions, or disabilities.Refusal to do so may be legally actionable by the person who was discriminated against, and/or they can take action on behalf of someone they are the legal guardian of if they were discriminated against. This means these individuals may be able to file a human rights complaint against that business, or organization.
Human rights complaints are costly, time intensive, and can cause various harms and damages to businesses and organizations. Businesses and organizations will most likely have to pay lawyers to represent them, incurring legal expenses and costs. Defending yourself and your organization in a human rights complaint takes a lot of time, energy, and effort. The actions involved in these complaints includes:
■ Learning about the human rights process and paperwork;
■ Locating and meeting with legal counsel once a retainer is provided;
■ Preparing to defend your legal case and the complaint laid against your business/organization, and filing the required legal forms and paperwork;
■ Strictly adhering to legal timelines, procedures, and processes.
These cases can cause reputational damage to B/O's because written decisions are available to the public. The names of business owners and employees who may have engaged in disreputable and harmful ways will be publicly reported in decisions. Harmful, unfavourable local gossip, and word of mouth about a business could also come into play, creating a legacy that is harmful to the business.
If the B/O loses the human rights case they will most likely be ordered to pay damages in the form of compensation to the person whose human rights were violated. These are often called, "Injury to Dignity"awards.
B/O's can avoid all of these things by familiarizing themselves, and training their employees in human rights legislation and duty to accommodate requirements.
Knowing Your Legal Duties and Obligations Under Human Rights Legislation
It is the legal obligation of every business owner, manager, and/or organization to have a strong understanding of ALL legislation that applies to your business, and organization in your jursidiction. This includes the following:
1. Health and safety licensing regulations, guidelines, policies and requirementsfrom local health authorities, municipal and provincial/territorial levels of government for your industry.
2. Workplace health and safety legislation, regulations, and policies from your provincial/territorial workers compensation board.
3. Human rights legislation and how to operate your business/organization in full compliance with the legislation and regulations in your province/territory for both employees and the public.
4. Employment standards legislation, regulations, and policies and to operate in compliance with these regarding how to manage and treat your employees.
Video: Duties & Rights of Business Owners on Masking under Covid
In this video, Rocco Galati, a constitutional rights lawyer, discusses the legal duties and obligations business owners have regarding handling masking mandates and orders.
Rocco Galati: Duties & Rights of Business Owners on Masking under Covid.
Commonalities of Human Rights Legislation in Canada
There are many key commonalities enshrined in the different human rights laws in Canada. These include:
➤ Outlining "protected grounds": This includes things such as gender, race, mental and physical disabilities.
➤ Equality rights: Ensuring that all people in your jurisdiction are treated with equality, dignity, inclusion and the ability to participate fully in society.
➤ Prohibiting discrimination: This includes not treating people differently for protected grounds. This denies people equality, dignity, and the ability to be included and participate in society.
➤ Legal duty to Accommodate: Legal requirements and duty to accommodate people who are claiming a protected ground in order to access a service, or business.
➤ Undue hardship:If an organization is claiming it cannot accommodate an protected individual, or group, the legal duty falls on the organization to provide evidence of why it would be "undue hardship" and why they cannot accommodate the person who reports a protected status.
➤ Individual case: When an individual who has a protected status makes a complaint of discrimination against an organization.
➤ Representative, or systemic case: When an individual makes both an individual human rights complaint, but also makes a complaint based on a whole protected group, or class, being systematically discriminated against.
Prima Facie Case of Discrimination
Upon filing a human rights case, an individual must provide the following:
■ A substantive explanation and report about how your organization discriminated against them.
■ The protected status that the discrimination occurred under in the applicable legislation.
■ A detailed account of the situation, including the names of participants and witnesses who were involved in the discrimination they are alleging took place.
The Supreme Court of Canada has described the prima facie test as follows:
The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent–employer.
1 "discrimination" includes the conduct described in sections 7,
8 (1) (a), (9) (a) and (b), 10 (1) (a), 11,
13 (1) (a) and (2), 14 (a) and (b), 43 and 47.21;
Discrimination and intent
2Discrimination in contravention of
this Code does not require an intention to contravene this Code.
Purposes
3The purposes of this Code are as
follows:
(a) to foster a society in British
Columbia in which there are no impediments to full and free participation in
the economic, social, political and cultural life of British Columbia;
(b)to promote a climate of
understanding and mutual respect where all are equal in dignity and rights;
(c) to prevent discrimination
prohibited by this Code;
(d) to identify and eliminate
persistent patterns of inequality associated with discrimination prohibited by
this Code;
(e) to provide a means of redress for
those persons who are discriminated against contrary to this Code.
Discriminatory
publication
7(1)A person must not publish, issue or display, or cause to be
published, issued or displayed, any statement, publication, notice, sign,
symbol, emblem or other representation that
(a)indicates
discrimination or an intention to discriminate against a person or a group or
class of persons, or
(b)is
likely to expose a person or a group or class of persons to hatred or contempt
because of the race, colour,
ancestry, place of origin, religion, marital status, family status, physical or
mental disability, sex, sexual orientation, gender identity or expression, or
age of that person or that group or class of persons.
Discrimination
in accommodation, service and facility
8 (1)A person
must not, without a bona fide and reasonable justification,
(a)deny
to a person or class of persons any accommodation, service or facility
customarily available to the public, or
(b)discriminate
against a person or class of persons regarding any accommodation, service or
facility customarily available to the public
because of the race, colour,
ancestry, place of origin, religion, marital status, family status, physical or
mental disability, sex, sexual orientation, gender identity or expression, or
age of that person or class of persons.
Find The Human Rights Legislation and Organization in Your Province/Territory
1. Visit this Linkto find a list of all of Civil & Human Rights Laws, Commissions and Tribunals in Canada
Mask Exemption Resources for Human Rights Compliance
BC’s Office of the Human Rights Commissioner’s poster
aims to reduce misunderstandings about the application of the order to people
who are unable to wear masks. The poster encourages duty bearers such as
business owners to take people at their word if they claim a mask exemption.
“As we
adopt more extensive mask-wearing protocols, it is important to ensure that the
implementation of the mask-wearing mandate does not violate people’s human rights,
particularly the rights of people with disabilities,” said Human Rights
Commissioner Kasari Govender.
Advice for Businesses and Organizations Regarding Mask Policies and Orders
➤ Take into account the protected grounds covered under your province/territory's human rights legislation.
➤Ensure that exemptions and accommodations are clearly articulated within your policies. For
example, you may need to state that your policy does not apply —or applies differently—to people with a
medical condition, such as a severe respiratory issue, or a disability that inhibits their ability to wear a mask,
such as being unable to place or remove a mask without assistance.
➤ If someone states they have a health exemption as the reason they are not wearing a mask the individual is exercising their human rights. Your business and employees have a legal duty to accommodate their needs.
➤ Businesses and organizations are not legally entitled to ask to see "proof" or "evidence" to justify a health, or medical exemption.Asking for this is a violation of individuals' rights to privacy of their personal information under the applicable privacy legislation in your province.
➤An
inability to use a mask or an inability to follow a health and safety procedure
must not lead to automatic negative consequences such as employee discipline or termination, denial of service or eviction from housing.
➤ Requiring individuals who do not wear masks due to health exemptions to submit to additional "screening measures," such as answering health questions, or submitting to temperature screening, also violates human rights legislation under equality provisions. This may also violate other provincial legislation.
➤ Educate and train your employees about mask exemptions, human rights laws, and the requirements to follow them, and why this is important.
Conclusion
Civil and human rights legislation aims to "level the playing field" for individuals who may be at higher risk of being discriminated against in Canadian society. There is a great deal of research that shows that people with disabilities, both visible and invisible ones, face direct and indirect discrimination that impacts their dignity and ability to be fully included and participate in their communities. Many of us take these things for granted.
At any point in any of our lives, we, or someone we love, could experience a temporary, or permanent change in our health, including a disability, that may impact the way we participate in the world, and how we experience quality of life.
Canada benefits, as a whole, when we treat all members of our society with compassion, dignity, equality, and respect and the same rights as others to fully be included and participate in all aspects of community life.
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