Where two human rights conflict, the Supreme Court of Canada has said no rights are absolute, no one right automatically “trumps” any other, and any human right can be limited if it interferes with the rights of others.
Girls and women often face sexism, marginalization, discrimination, harassment and exclusion throughout society. Women have fought hard over the years for equal rights and treatment.
People belonging to minority creed communities have faced religious intolerance, including serious persecution, harassment, racism and discrimination.
People who identify by any Code ground must be treated equally in the “social areas” protected by the Code. This may require an organization to make rules, practices and procedures more flexible to allow people who follow a creed to take part in employment, services or housing. It can also sometimes require imposing limits on, or not accommodating, a creed practice to protect and preserve the competing right of women to take part equally in a social area.
Court decisions have said that religious beliefs may have more protection than the conduct motivated by those beliefs. This is because acting on beliefs may have more of a harmful impact on the rights of others. Where an accommodation does have an adverse impact on others, organizations should apply a competing rights analysis as set out in the OHRC’s Policy on Competing Human Rights.
Every competing rights situation has to be assessed based on all of the relevant facts. Context is critical and even small adjustments to the facts can lead to a different analysis and outcome in a competing rights situation.
People who want an accommodation that restricts interactions between men and women should generally provide advance notice to organizations. Notice is particularly important where an accommodation request may have an adverse impact on the rights of others.
If a creed accommodation might affect women's equality rights, organizations need to assess the extent of interference with each right, including whether each right is affected at its core (a fundamental aspect of the right) or its periphery. This assessment should be based on evidence of an actual adverse impact on each set of rights.
Sometimes, a competing rights situation may be avoided or mitigated by providing an accommodation in an alternative way that does not negatively affect the equality rights of women in a significant way. For example, if a man’s religious beliefs require him to not sit beside a woman on public transit, the public transit provider should not require any woman who happens to be seated beside him to move. This would be an inappropriate accommodation. Rather, it should require the man who is seeking the accommodation to move, if possible, to facilitate such an accommodation request.
Where the impact of a creed accommodation requesting no or reduced contact with members of the opposite sex is too great, accommodation may not be possible. For example, asking women to not take part in services, employment, housing, etc. to avoid cross-sex contact would not be an appropriate accommodation.
All Ontarians benefit from a society that promotes equal participation by respecting diversity and pluralism, and affording equal rights, opportunities and dignity to all.