Unions have long played a role in the advancement of human rights in the workplace. As a tool of change human rights laws and principles can be used to create equal opportunity in the workplace and to address situations where human rights are not being respected. All union representatives need to be knowledgeable about basic human rights principles and options available for members to address situations of discrimination in the workplace.
Human rights are rights inherent to all humans, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language or any other status. These are basic rights that everyone should be entitled to. (adapted from: www.ohchr.org/en/issues/pages/whatarehumanrights.aspx)
It is generally held that the birthplace of human rights was the United Nations, Universal Declaration of Human Rights, adopted by 58 member states in 1948. Equality and freedom from discrimination were the first two articles among 30 declarations and it is these two principles which form the foundation of human rights legislation in Canada.
For Federal Government employees, human rights in the workplace are governed by federal legislation, the Canadian Human Rights Act. For the most part, these rights are enforced via the Collective Agreement or the Workplace Harassment Complaint policy. As unionized employees our first option for recourse is through the internal grievance or complaint system. Non-unionized employees enforce their rights by taking complaints directly to the Canadian Human Rights Commission. For members falling under provincial or territorial jurisdiction, the applicable human rights legislation for the province or territory applies. While there are minor differences in the various jurisdictions, the main concepts and protections are very similar, including the rule that unionized employees must seek recourse under their internal system first.
What is Discrimination?
Making a distinction between certain individuals or groups based on prohibited grounds of discrimination. Discrimination may be intentional but it doesn’t have to be. It is the impact that matters and not the intent.
Behaviours that amount to harassment may also violate the human rights legislation if the harassment is based on a prohibited ground. For the complainant it is often difficult to prove the reason for the differential treatment or harassment. Without a clear link to the prohibited ground, the behavior or actions may still be inappropriate (if they fall under “personal harassment” which is often covered by Employer Anti-Harassment policies), but they will not be seen as a human rights violation.
What Human rights are protected?
The CHRA lists 11 protected grounds:
Race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered
Employers and Unions both have obligations to employees pursuant to the CHRA (or provincial equivalent) to not engage in discrimination against individuals on the basis of any protected ground. True equality cannot always be achieved by treating everyone equally. In some cases, Employers may be required to provide accommodation to employees in order to respect different needs and allow everyone to participate in the workplace equally. When necessary, Employers must accommodate employees to the point of undue hardship. It should be noted that this is quite a high threshold and it is generally accepted that undue hardship is rarely reached by accommodations in the Federal public service, given the size and resources of the Federal Government.
Human rights issues in the workplace may be raised with the employer in the context of a grievance claiming violation of the CHRA and/or the “no discrimination” clause in the Collective Agreement. Human rights can also arise in the context of an employee’s request for accommodation pursuant to the CHRA and/or Employer policies on accommodation of disabled employees. Discrimination may even present itself in the context of a staffing action subject to the PSEA, and thus, may form part of recourse sought in a complaint before the PSST.
A third party directing a remedy for a violation of a member’s human rights has broad powers under the CHRA to provide recourse that will prevent future discrimination as well as to compensate the complainant for loss of personal dignity and quantifiable damages
Relevant Decisions and References
Duty to Accommodate
Steward Newsletter: Duty to Accommodate
PIPSC Human Rights Committee
PIPSC: Important Decisions
Family Status Discrimination: Eldercare
Your Guide to Understanding the Canadian Human Rights Act