human rights administering human rights legislation

HUMAN RIGHTSAdministering Human Rights Legislation

Human Rights Legislation• HR Commission- government created body to enforce

various human rights codes and make decisions about complaints

• Example of Administrative Law

• Commissions, board of inquiry, adjudicator, and Tribunals

• HR Commissions are also acting as an educative role to promote positive relationships and to deal with social tensions

Human Rights Legislation• Example: 2007 a wave of violence against Asian-

Canadian anglers in small Ontario towns

• HR Commission set up an inquiry and determined that the situation needed to be solved and a campaign was created

• ‘Fishing without Fear”

• Recommendations for developing race relations, training for conservation officers and promoting anti racism in local schools

Filing a Complaint• Complainant- the person making the allegation of discrimination

• As the accuser it is up to you to prove your case

• Example: You feel that during a hiring interview you feel discriminated against you must prove that:

1. You were qualified for the particular employment

2. You were not hired for the job

3. Someone no better qualified than you was hired- someone who lacked the distinguishing feature of your complaint

• If all of this is met, your case “might” go to a commission or tribunal

Filing a Complaint• The commission will inform you if your complaint is

covered by the OHRC

• If so, the commission will serve your claim to the respondent (the person or group you are alleging discrimination)

• The respondent will then be asked to formally respond to the claim

Dismissing a Complaint• At this stage the HR Commission may dismiss the

complaint for the following reasons:

- There is no merit to the claim- There is minimal issue of discrimination- The complaint has already been dealt with by another

proceeding- The claim is made for improper motives or is frivolous

• There is a time limit for claims (usually one year)

Mediation and Investigation• If your claim is not dismissed it moves on to this step

• Mediation- parties are assisted by a mediator

• Both parties must agree to a mediation solution

• If this does not occur, the complaint goes to formal investigation by the HR Commission

• Gathering evidence

Mediation and Investigation• After investigation by an HR Officer and no solution can

be reached between the parties than the case will be referred to a trial type case

• Similar to a criminal trial- calling witnesses

• Decisions can also be appealed as in criminal law

• The solution is to provide remedies which try and provide a solution similar to what the complaint was for

Remedies• Dependent on circumstances

• Ordering for a halt in discriminatory practices• Payment for mental anguish or losses in pay or benefits• Compelling an employer to give a job back or to provide a

promotion that was denied• Forcing organizations to adopt certain programs• Provide HR training

Determining a Case• 1. Is the area of the potential discrimination/harassment covered by the

Ontario Human Rights Code?

• 2. Is the potential ground of discrimination/harassment covered by the Ontario Human Rights Code?

• 3. Has the employer/accused used a rule, practice or barrier that has caused an adverse impact on the person making the claim?

• 4. Can the employer provide evidence of a bona fide requirement that if forced to accommodate would cause undue hardship to the company, building, event, etc…

• 5. If 4 cannot be answered adequately by the employer/accused than the claimant will win remedies- they will have been discriminated against or harassed.

Remedies• Financial Compensation:

• Money to compensate you generally for the loss of the right to be free from discrimination, including the insult to your dignity (also known as “general damages”)

• Money to compensate you for any special financial costs that you experienced because of the discrimination (also known as “special damages”)

• Special damages can include loss of income, benefits, rent, housing, etc…

Remedies• Non-Financial Remedies:

• Reinstatement to your job• A promotion• An offer of employment• The removal of a harasser from your work environment• Letters of assurance of future compliance with the Code• A letter of reference

Remedies• Public Interest Remedies

• The Tribunal can order a wide range of remedies that are “in the public interest.” These remedies are meant to have an impact on the broader community, including other people who could have been affected by the discrimination.

• Change hiring practices• Develop non-discriminatory policies and procedures• Develop internal human rights complaint procedures• Implement pro-active measures (such as a recruitment policy aimed at eliminating

barriers for racial minorities)• Implement education and training programs (such as having all staff receive training

on a human rights policy)• Post the Human Rights Code in the workplace• Require a property management company to send a memo to all

superintendents/agents• Make a donation to charity• Ensure the CEO delivers racism training at the annual meeting

Remedies• Example of a Human Rights Commission Order:

• The Tribunal orders that:

• The Respondent is to pay $5,000 to the Applicant as monetary compensation for injury to dignity, feelings and self- respect.

• The Respondent is to pay $4,276.00 to the Applicant as monetary compensation for lost wages.

• The Respondent is required to provide a copy of this decision to all current staff and administrators who have authority to conduct investigations under its human rights policy and procedures;

• The Respondent is required to review and modify its human resources policies to establish a process for the investigation of potential human rights violations that is consistent with the Ontario Human Rights Commission Guidelines on Developing Human Rights Policies and Procedures;

• The Respondent will publicly display a copy of the Code and its policy in the reception area.