How to Defend a Human Rights Application?
In Ontario, the Human Rights Code (the “Code”) protects employees, tenants, contractors, customers and workers from discrimination and harassment based on protected grounds. The grounds include, but are not limited to, disability, citizenship, place of origin, sex, race, ethnic origin, colour, ancestry, age, creed, sexual orientation, and gender expression. The protection under the Code applies to five different areas, including employment, the provision of services and housing. A person alleging discrimination and/or harassment on one of the protected grounds can file a Human Rights Application (“Application”) before the Human Rights Tribunal of Ontario (the “Tribunal”).
If you have been named as a Respondent in an Application before the Tribunal, you must file a Response. A Response is a formal legal document filed with the Tribunal to address the allegations in an Application. In the Response, you can give your version of facts, deny the allegations and defend your actions using the defences listed in the Code. The Response should be filed within 35 days after the Tribunal sends you a copy of the Application. Defending a Human Rights Claim can be an uphill task if the defending party does not know the available defences and how to properly plead them.
This article will explain the most common defences to a Human Rights Claim and when to plead them.
Request for Early Dismissal
The Tribunal allows a Respondent to request an early dismissal of the Application in certain circumstances. The Tribunal may dismiss the Application without needing a full response when:
- The Applicant has signed a full and final release with respect to the same matter;
- A claim based on the same facts was filed in civil court, already requesting a remedy for Human Rights violations;
- A complaint was filed with the Ontario Human Rights Commission based on the same or substantially the same facts; or
- The issues raised in the Application are within federal jurisdiction.
Accommodating the Applicant would Cause Undue Hardship
The duty to accommodate can arise in many different situations because of a person’s age, disability, family status, marital status or any other protected ground listed in the Code.
Examples of accommodation include but are not limited to:
- Building a wheelchair access ramp;
- Having flexible work hours;
- Allowing employees to work from home on certain days;
- Allowing a worker to not work on certain holidays; or
- Allowing a pregnant employee to attend doctor’s appointments.
However, the duty to accommodate has limits. The employers, service providers and landlords are required to accommodate unless doing so would cause undue hardship.
The Code mentions three considerations to determine whether an accommodation would cause undue hardship:
The organization must prove that the cost of accommodating was so high that it would have altered the nature of the enterprise or substantially affected its viability.
Any Outside Source of Funding
Before using the undue hardship defence, the Respondent must also show that they tried to take advantage of any available government funding (or other) program to help with such costs.
Health and Safety Risks
If an organization can show that accommodating would have caused health and safety risks, it could be considered an undue hardship.
The threshold for proving undue hardship is quite high. For example, an employer might be able to raise a defence of undue hardship if the costs of accommodating a disabled employee were exponential. They cannot claim undue hardship if accommodating the employee would have been simply expensive or inconvenient.
Further, if the Applicant shows that the Respondent could have accommodated them or even provided temporary accommodations, the Respondent could be liable for violating the Code. For this reason, an organization should consult with legal counsel when an employee requests accommodation.
The Employee is Incapable of Performing their Essential Duties due to Disability
An employer can defend an Application by showing that the employee cannot perform an essential requirement of their job due to disability. However, the employer must satisfy the Tribunal that they could not have accommodated the person without undue hardship.
The onus is on the employer to show the incapacity on the Applicant’s part and make a claim of undue hardship.
The Applicant Did Not Participate in the Accommodation Process
Sometimes a respondent can assert they fulfilled their duty to accommodate because the Applicant did not participate in the accommodation process.
For example, an employee who refused to provide a medical note detailing their disability might not be able to assert a failure to accommodate.
However, a Respondent must exercise caution while pleading the Applicant did not take part in the accommodation process. If the Applicant’s accommodation needs are apparent, the Respondent may not defend by asserting that the Applicant did not request an accommodation.
The Discriminatory Standard or Policy was a Bonafide Occupational Requirement
An employer can also defend a Human Rights Claim by showing that the discriminatory standard, rule, or policy at their workplace is a bonafide occupational requirement.
The Tribunal analyses whether a requirement is reasonable and bonafide after the Applicant has made out a prima facie case of discrimination.
To prove that a discriminatory rule or standard is a bonafide occupational requirement, the employer must establish that the standard or rule:
- Was adopted because it is rationally connected to the performance of the job;
- Was adopted with an honest and good faith belief that it was necessary for fulfilling that legitimate work-related purpose; and
- Is reasonably necessary to carry out that legitimate work-related purpose.
The Code lists various other defences the Respondent can raise depending on the allegations. For instance, where an employee alleges discrimination based on citizenship, the employer can defend the claim by showing that the discrimination was authorized by law.
How A Lawyer Can Help
The Tribunal process consists of different stages, namely, the pleadings stage, mediation, and the hearing.
A human rights lawyer knows the ins and outs of the Tribunal process. They can help your organization defend allegations of human rights violation in the following ways:
- Assess if the case is covered by one of the grounds for early dismissal as mentioned above;
- Raise the defences under the Code, such as undue hardship and a bonafide occupational requirement;
- Plead all the facts proving the necessary elements of a Code defence;
- Participate in mediation and advise on settlement;
- Bring all the relevant facts and evidence before the Tribunal; and
- Argue the case on your behalf at the hearing.
The best way to defend a Human Rights Application is to avoid it altogether. Every organization should explore the option of hiring a chief legal officer (CLO), otherwise known as general counsel.
A CLO heads a company’s legal department, supervises the work of the in-house legal team and advises on various human rights and legal issues. Their job description includes reporting to the chief executive officer.
A CLO provides a wide range of legal services to the company, including but not limited to advising:
- senior management on workplace policies related to employee accommodation, workplace violence, and sexual harassment;
- the board of directors regarding the latest developments in the law and the company’s legal and regulatory obligations;
- with the ongoing litigation; and
- on the adequacy of the company’s accommodation measures.
Defending a Human Rights Application can be stressful, as it requires engaging in a lengthy and costly legal battle. The success of your case depends on the defences you plead and the justifications you give for your actions.
A slight error in the pleadings can seriously impact the viability of your defence. A human rights lawyer can help you assess the strength of your defence and guide you through the entire process to give you the best chance of success.
If you need any help defending a Human Rights Claim, our team of experienced employment and human rights lawyers at Achkar Law can help. Please contact us either by phone at +1 (800) 771-7882 or by email at [email protected], as we are always happy to assist.