Rights, Equity and the State: Dispute Resolution Case

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Table of Contents

Introduction
Analysis
Conclusion: Recommendations
References

Introduction

This paper is devoted to the analysis of a case of dispute that involves the issues of, on the one hand, student accommodation and, on the other hand, employment equity. A student (who is a deaf person) finds it difficult to read the lips of a Sikh professor who has a beard and, apparently, speaks with an “accent,” which makes his speech incomprehensible to the student. The student refuses to have someone take notes for him or to invite a sign interpreter.

The course is a required one; the student is in the last semester. The professor, on the other hand, refuses to shave the beard and is offended by the request to speak slower. He is a Sikh, and he believes that the request can be considered discriminatory.

He is willing to make a complaint to the Ontario Human Rights Commission, and he threatens to quit. The union of the faculty believes that he is right in his assumptions and that the college is not very successful in ensuring employment equity. Both persons have already filed complaints to the anti-harassment office. Unfortunately, in this case, the rights are apparently colliding, and both persons who are involved require protection. Therefore, the careful development of a strategy for the resolution of the dispute is necessary.

As a member of the anti-harassment office, I am to review the situation, analyze it, define the responsibilities of the college (the duty to accommodate and the employment equity requirements), and make recommendations on addressing the issues. There is no single anti-harassment policy offered by the Ontario Human Rights Commission (2013); rather, every organization is supposed to develop one that fits its needs. As a result, this paper considers the guidelines of the Ontario Human Rights Commission [OHRC] (2001, 2008, 2009, 2013, 2015) in an attempt to resolve the dispute.

Analysis

The Nature of Harassment and Discrimination

In order to understand the case, we need to demonstrate that discrimination or harassment took place in the area of the provision of services or employment; they are based on “disability” in one case and on the “race,” “ethnicity,” and creed in the other one.

The Ontario Human Rights Code declares that everyone has the right to be free from discrimination based on “disability of perceived disability;” the Code also requires the creation of an inclusive environment (OHRC, 2008, 2009).

The student apparently experiences discrimination: with his personal characteristics as a basis, he is unintentionally distinguished in a way that puts him at a disadvantage that other members of his group do not experience; this distinction has the potential of depriving him of the benefit of education (Module 1 Week 4). He also has the right to define his needs, and if he states that the solutions which can be considered as an alternative to lip-reading are not respectful enough, his opinion must be taken into account (OHRC, 2009). The case is clear, and the faculty is supposed to accommodate his needs and protect the student from discrimination.

The professor insists that he is being discriminated against on the basis of race and ethnicity. Possibly, he refers to “racialization,” which can be used to describe discrimination that is based on “race” (which is a controversial and rather racist term, but the professor uses it), “ethnicity,” and creed (Module 2 Week 8). In the case of the professor, he is most definitely concerned with the request that counters his beliefs (Sikhism). For Sikhs, beards are religious signifiers and requirements that cannot be removed on a whim (OHRC, 2015, pp. 89, 91). Canada is a very religiously and culturally diverse country, and the Ontario Human Rights Code prohibits discrimination based on creed (Seljak, 2012), which means that the faculty is expected to accommodate to the point of undue hardship.

It can be concluded that the professor is being subjected to vexatious conduct that is known to be unwelcome, that is, he is being harassed (Module 1 Week 4). Moreover, the professor may have been offended by the suggestion to speak slower, which implies discrimination based on his origin and ethnicity. Provided that he had been informed about the reasons for the request (to help a person read his lips), it appears relatively unlikely.

However, it is a possibility especially if the discrimination of this kind is not completely eliminated at the faculty, which the case implies. The origin of the professor is not clear in the case. However, if he does speak with an “accent,” there is a chance that he is an immigrant or their descendant; as a result, it can be concluded that he is subjected to intersectional harassment based on creed, ethnicity, and possibly immigration status.

Intersectional discrimination is a particularly difficult case (OHRC, 2001; Royal Commission on Aboriginal Peoples, 2006). Given that the Ontario Human Rights Code prohibits harassment and discrimination on the grounds of race, creed, and origin (OHRC, 2008), the professor is likely to be able to demonstrate the case of intersectional harassment if he makes a complaint to the OHRC (Module 1 Week 3).

Equity, Employment, and Services

Employment equity is a concept that is unique and exists only in Canada to define the policies which are supposed to improve the representativeness of a workplace (Module 3). In Canada, the fight with the discrimination that is based on creed began as early as in 1932 (Ontario Insurance Act); in 1951, the Fair Employment Practices Act was enacted (Module 1 Week 3). Nowadays, the values of Canada and its laws require employment equity.

OHRC (2008) reminds us that adhering to human rights at the workplace is not only a legal requirement, it is also a necessity and a wise practice. As the third reason for human rights protection (after the value of human rights and the fact that they are the law), the OHRC (2013) points out the benefits that employees and service providers can gain from the lawful practice. For employers, human rights protection results in attracting talent regardless of the typical discrimination grounds, reducing frustration, burnouts, and tensions, and improving employee retention. Service providers benefit from serving a larger population and promoting their reputation while also avoiding conflicts and increasing user loyalty.

In this case, the faculty acts as both a public service provider and an employer, which means that human rights protection is an obligation as well as an opportunity for it.

The Duty to Accommodate and Undue Hardship

The duty to accommodate applies to both cases; it presupposes that the faculty is expected to accommodate the needs of both the student (OHRC, 2009) and the professor (OHRC, 2015). Naturally, it can be suggested that the easiest solution consists in getting the methods that are alternative to lips reading to help the student receive the course. However, the student insists that he does not consider any other means to be respectful, and the antiharassment office needs to take this factor into account.

The OHRC (2009) Policy and Guidelines on Disability and the Duty to Accommodate state explicitly that every solution must be customized, and the needs of individuals with similar conditions, characteristics, and qualities are likely to be different. Since respect for dignity is a crucial aspect of the duty to accommodate (Module 1 Week 4), the easiest solution can only be considered if nothing else can be done.

The OHRC (2009) states that undue hardship is primarily connected to costs and funding or inconsistency with health and safety requirements. Only these aspects can justify the failure to accommodate; they must be proved and (in the case of cost-related ones) quantified.

Conclusion: Recommendations

It is apparent that finding a solution requires further work with the two men. Seeking a compromise is always a preferred way out, and it is stated explicitly in the OHRC (2009) Policy and Guidelines on Disability and the Duty to Accommodate. In other words, approaching both persons again with the aim of improving their awareness of each other’s predicaments and finding a compromise is an acceptable course of action, but it is necessary to ensure that no pressure is applied, and no harassment occurs. However, since the discussions with both persons have already occurred, it is not unlikely that they will find it impossible to achieve a compromise.

In this case, the following strategy can be employed. It is apparent that in the view of employment equity and respect towards the specifics of Sikh culture, insisting on shaving the beard amounts to discrimination and is, therefore, unacceptable. It is only possible in case the professor considers it a suitable solution when he learns about the student’s predicament. However, it cannot be denied that the discrimination of the student does take place, and it is necessary to provide him with an opportunity of taking the required course in a way that is most respectful of his rights to the point of undue hardship.

In other words, it is necessary to consider the possibility of providing him with the opportunity of private lessons with another instructor. However, this option needs to be considered from the point of view of the hardship that it produces. This hardship is unlikely to cause safety issues, which is why the economic aspect of the option needs to be considered with the help of the OHRC (2009) Policy and Guidelines on Disability and the Duty to Accommodate.

In case the option does cause undue hardship that is quantified and proved, the student might have to use the methods that he does not consider respectful (like a sign interpreter). However, this outcome is relatively unlikely since the OHRC (2009) demands to avoid “putting too low a value on accommodating the disabled” and pays particular attention to the possibility of outside funding (para. 21). Unfortunately, rights are not absolute (Module 1 Week 1), and there is a limit to what we can do to resolve the issue, but, hopefully, the outcome which demands that the student is forced to use the methods that he does not consider respectful will be avoided.

References

Ontario Human Rights Commission. (2001). An intersectional approach to discrimination: Addressing multiple grounds in human rights claims. Web.

Ontario Human Rights Commission. (2008). Human Rights at Work. Web.

Ontario Human Rights Commission. (2009). Policy and guidelines on disability and the duty to accommodate. Web.

Ontario Human Rights Commission. (2013). A policy primer: Guide to developing human rights policies and procedures. Web.

Ontario Human Rights Commission. (2015). Policy on preventing discrimination based on creed. Web.

Royal Commission on Aboriginal Peoples. (2006). Report of the Royal Commission on Aboriginal Peoples. Web.

Seljak, D. (2012). Protecting religious freedom in a multicultural Canada. Creed, freedom of religion, and human rights – Special issue of Diversity Magazine, 9 (3). Web.

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