Competing Human Rights eLearning Module 5
Welcome to Module 5 of the competing rights course! As we go through a competing rights scenario together, you will have a chance to make decisions and see what happens next. The Ontario Human Rights Commission – or OHRC – has a framework for addressing competing rights issues. Depending on the situation, organizations can use the framework to address competing rights through a quick process or the full process. Many competing rights issues can be resolved using the quick process, which is informal and usually involves no more than one or two meetings. The quick process focuses on finding solutions that benefit all sides and respect human rights. For an example of a scenario that was resolved using the quick resolution process, select the link on your screen. I’ll show you how to apply the full process, by going through the framework together step by step. Select the link on your screen to follow along with the framework. We’ll start with a scenario. Meet Professor Ito. She has been teaching in the Business Administration program at a community college for over 15 years. She’s a popular professor. Professor Ito is blind and has a guide dog, Patten. Professor Ito teaches several courses, including “Introduction to Human Resources Management" which is taught twice per semester. Because of her seniority, Professor Ito has the daytime session. Another professor teaches the evening session. This is Mya. She is a student in the Business Administration program focussing on Human Resources. She has to take the course “Introduction to Human Resources Management,” which is a pre-requisite for the human resources speciality. She’s in Professor Ito’s daytime session. Mya has a severe allergy to dogs and is thinking about withdrawing from the course. She has been sitting in the back of the class as far away from Patten as possible. Patten stays under Professor Ito’s desk during her lectures. However, Mya’s eyes itch and she has difficulty sitting in the same room with Patten for two hours at a time. Mya thought about switching to the evening course but she doesn’t have the money to hire a baby-sitter for her 3-year-old son. During the day, he’s at the subsidized college daycare. Mya claims that because of her allergies she is being denied equal access to the college’s educational services. She doesn’t understand why Professor Ito needs to have Patten in the class while she is teaching. Is this a competing rights situation? What should the college do to make sure both Professor Ito and Mya can enjoy their rights? To answer these questions, we’ll go through the full framework. There are three stages in the framework: Stage 1:Recognizing competing rights claims Stage 2: Reconciling competing rights; and Stage 3: Making decisions. Each stage has steps to help you analyze the situation. Let’s start with the first question: is this a competing rights situation? Stage 1 has three steps that will help us figure out if this is really a competing rights situation: Step 1: What are the claims about? Step 2: Do claims connect to legitimate rights? Step 3: Do claims amount to more than minimal interference with rights? Answers to these questions will help you know what to do next. Step 1 is about having a good understanding of the claims. We do this by having a detailed discussion with each person about their claim. Based on what you know from the scenario, what are Professor Ito’s claims? Click each claim that applies to Professor Ito, then press submit. [pause until user presses “submit”] Now, think about Mya’s claims, and click on the boxes that apply to her. [pause until user presses “submit”] Right! Now that we have a good understanding of the claims from both sides, let’s go to step 2. In Step 2, we need to make sure that both Professor Ito’s claims and Mya’s claims connect to legitimate rights. We do this by answering these questions: (a) Do claims involve individuals or groups rather than operational interests? (b) Does at least one claim fall under a human right? (c) Do claims fall within the scope of the right? Let’s start with (a) - Do claims involve individuals or groups rather than operational interests? This question helps us tell the difference between a competing rights claim, where both sides have claims, and a duty to accommodate situation, where only one side has a claim. To review the difference between a duty to accommodate situation and a competing rights situation, review the introduction for Module 3. In this scenario, do the claims involve individuals or operational interests? [pause] Right – there are two individuals making claims, Prof. Ito and Mya. Let’s look at question (b): Does at least one claim fall under a human right? Sometimes it helps to ask “which rights could be violated?” Here is a list of the grounds of discrimination under the Ontario Human Rights Code. Are Professor Ito or Mya’s claims based on any of these grounds? [pause] Yes, they are both making claims on the ground of disability. The college has a duty to accommodate both Mya and Professor Ito’s disabilities. Professor Ito says that it would be discrimination if she is not allowed to take her service dog to class. Mya says that it would be discrimination if she can’t attend class because of her allergy. Both are claiming discrimination on the ground of disability. Now let’s look at question c - Do the claims fall within the scope of the right? This question is asking you to make sure that both Professor Ito and Mya are making claims that are within the scope of their right under the Code to not be discriminated against. We all have the right to be free from discrimination because of disability, and the right to be accommodated. Do Professor Ito and Mya’s claims fall within the scope of this right? [pause] Yes – Professor Ito has the right to bring her dog to class as an accommodation for her disability, blindness. Mya has the right to attend class, and to have her disability – a severe allergy to dogs – accommodated, as well. So both Professor Ito and Mya’s claims fall within the scope of their right to be free from discrimination on the ground of disability. Now that we’ve completed the process for step 2, let’s move on to step 3. Step 3: Do claims amount to more than minimal interference with rights? Now we are looking at how much the issue actually interferes with Professor Ito and Mya’s rights. Will Professor Ito be disadvantaged if she can’t take her dog to class, or if she has to teach the evening class? Will this limit her opportunities? [pause] Yes. If Professor Ito can’t take her dog to class, it will significantly interfere with her right to accommodation. If she has to teach the evening class, it will affect her right to equal opportunities in the workforce. This is more than a minor interference with her rights. In Mya’s case, will she be disadvantaged if nothing is done to address her allergy to Professor Ito’s dog, or if she is forced to quit the class? [pause] Yes. If Mya has to attend class with Professor Ito’s dog with no accommodation, or quit the class, it will significantly interfere with her rights to accommodation and equal participation in the classroom. Both Professor Ito and Mya’s claims, if realized, would amount to more than minimal interference with the other person’s rights, because there would be significant disadvantages to the other person. Now we’ve completed the stage 1 analysis. By going through the three steps in stage 1, we’ve confirmed that Professor Ito and Mya each have legitimate rights, and that these rights compete. Is there a way to settle this, so that both Professor Ito and Mya are happy? Before we begin the process of reconciling competing rights in Stage 2, we need to find the approach that works best for the particular situation. Should we go through the process independently? Or should we hire a mediator? Let’s look at some Alternative Dispute Resolution models, or ADR models, to help answer these questions. The first ADR model is called negotiation. This is a voluntary process that does not involve an independent mediator. Negotiation is used when parties want to control the process of reconciling claims, rather than have a third party control the process and impose decisions on them. It is also less costly. The second ADR model is called conciliation, also known as mediation. In mediation, an impartial third party is hired to facilitate the process of reconciling the competing rights. This model can be used when attempts at negotiation reach a deadlock, or when the situation is too complex to address without outside expertise. Settlements are legally enforced. It is still much less costly than litigation. Click the link on your screen if you’d like more information about these ADR models. Which ADR model do you think would work for the college, Professor Ito and Mya? [once the user has made a selection] There is no right or wrong answer – the answer will depend on individual circumstances and should be determined on a case-by-case basis. In this case, the college, Professor Ito and Mya have agreed to try the negotiation model. Everyone hopes that they can come to a solution by working together. At this point, they don’t think a mediator is needed. We have completed the Stage 1 analysis, and we know that Professor Ito and Mya have a competing rights situation that needs to be resolved. Professor Ito, Mya and the college have all decided that they would like to use the negotiation model for dispute resolution. Now we’re ready to begin Stage two: reconciling competing rights. In stage 2, step 4 we ask: is there a solution that allows enjoyment of each right? There could be solutions that solve the issues in Professor Ito and Mya’s competing rights situation. Some solutions may require changes to the way that Mya or Professor Ito, or both, enjoy their rights. Let’s see if we can reconcile Professor Ito and Mya’s situation during Step 4. Think about some solutions that might work for Professor Ito and Mya, and write them in the text box. Press “submit” when you’re finished. [go to next scene when “submit” is pressed.]
Here are some of the solutions that the college suggested:
- Could a dedicated human assistant support Professor Ito during class, instead of her dog?
- Could the college provide a staff person at the daycare in the evening so that Mya’s son could be dropped off while Mya attends the evening course?
In some cases, going through Step 4 will resolve the competing rights situation. But what if Professor Ito does not feel comfortable with a human assistant, or the college can’t find a staff member for evening daycare? What if none of the other possible solutions are viable? If the case can’t be resolved at this step, we would move to step 5.
In Step 5, we ask: If there is no solution that allows enjoyment of each right, is there a “next best” solution?
If the reconciliation process in Step 4 does not lead to an ideal solution, there is still a duty to explore other, next best options. There may have to be a compromise, where parties are asked to be flexible, and possibly give something up.
Can you think of some “next best” solutions that could resolve the case for Professor Ito and Mya? Write them in the text box, and press “submit” when you’re finished.
Professor Ito, Mya and the college discussed some next best solutions. They might decide, for example, that Mya will take the course during the day, at home, by video-conferencing. This wouldn’t be ideal for Mya, who might prefer to attend the class in person, but it might be a feasible solution that allows both Mya and Professor Ito to basically enjoy their rights, with some flexibility on Mya’s part.
Alternatively, they might decide that Professor Ito will work in the evenings, just for this semester, and the other professor would take the day class. This solution wouldn’t be ideal for Professor Ito, who has worked hard to achieve seniority and teach at her preferred time. But it might be a workable compromise to allow both Professor Ito and Mya to basically enjoy their rights, with a temporary concession from Professor Ito. By working together, Professor Ito, Mya and the college can successfully reconcile this competing rights situation.
What if the parties are not agreeable to possible solutions? In some cases, competing rights situations might not be resolved by going through Stages 1 and 2 of the full process. But organizations still have an obligation to deal with claims, using a process that is consistent with the law and OHRC policy. In these cases, organizations must move on to Stage 3: Making decisions.
Some organizations have processes or policies to help deal with these situations. You might also find that the situation is too complex or contentious to deal with on your own, and you may wish to seek legal advice.
In any case, it is helpful to engage all parties in the reconciliation process.
You’ve now gone through the full process for reconciling a competing rights scenario! I hope this has helped you understand when to use the full process, and how it can be helpful.
Competing Human Rights eLearning
Transcript at http://ohrc.on.ca/en/learning/elearning/competing-human-rights/part-5