Review Questions - Week 5- Human Rights Law Part II
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Feb 20, 2024
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Lesson Five – Employment and Human Rights Law – Review Questions – Human Rights Law Part II
1.
According to the Human Rights Tribunal Rules of Procedure, what powers does the Tribunal have to intervene in applications?
according to the Human Rights Tribunal Rules of Procedure, the Tribunal has the following powers to intervene in applications:
The Tribunal may add a person as a party to an application if the person has a direct interest in the subject matter of the application or if it is fair and appropriate to do so (Rule 28 and 29)
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The Tribunal may allow a person or organization to intervene in an application if the person or organization has a special interest or expertise in the subject matter of the application or if it is fair and appropriate to do so (Rule 11)
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The Tribunal may defer the consideration of an application if there is another proceeding that could resolve or affect the outcome of the application or if it is fair and appropriate to do so (Rule 7 and 14)
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The Tribunal may dismiss an application in whole or in part if the application is outside the Tribunal’s jurisdiction, if the application is frivolous, vexatious, or an abuse of process, or if the substance of the application has been dealt with in another proceeding (Rule 13 and 22)
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The Tribunal may order an inquiry into any matter related to an application if the Tribunal considers it necessary or advisable to do so (Rule 20)
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The Tribunal may order an expedited proceeding for an application if the application raises a serious issue that could cause irreparable harm to a party or if it is fair and appropriate to do so (Rule 21)
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The Tribunal may order an interim remedy for a party pending the final determination of an application if the party is likely to suffer irreparable harm or substantial harm that outweighs the harm to the other party (Rule 23)
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2.
Describe the remedies that courts may award in response to human rights complaints. The remedies that courts may award in response to human rights complaints vary depending on the nature and severity of the violation, the jurisdiction, and the applicable human rights legislation. However, some common types of remedies are:
Compensation
: This is a monetary award that aims to restore the victim to the position they would have been in if the discrimination had not occurred.
Compensation may cover economic losses (such as lost wages, benefits, or expenses), non-economic losses (such as pain and suffering, humiliation, or loss of dignity), or punitive damages (which are intended to punish and deter the violator)
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Injunctions
: This is a court order that requires the violator to stop or refrain from engaging in the discriminatory conduct, or to take positive steps to remedy the situation, such as reinstating the victim, providing accommodation, or changing policies or practices
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Declarations
: This is a formal statement by the court that recognizes that a human rights violation has occurred and affirms the rights of the victim
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Public interest remedies
: This is a broad category of remedies that aim to prevent future violations and promote systemic change, such as requiring the
violator to undergo human rights training, education, or monitoring, or to implement special programs or measures to address the discrimination
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These are some of the remedies that courts may award in response to human rights complaints
3. Explain the importance of autonomy as an aspect of dignity, being one of the three principles of accommodation. Autonomy is the ability to make choices and decisions for oneself, according to one’s own values and preferences. Autonomy is an important aspect of dignity, which is the inherent worth and respect of every person.
Dignity is one of the three principles of accommodation, along with individualization and inclusion,
that guide the duty to accommodate people with disabilities under human rights law
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Accommodation is the process of removing barriers and providing support to enable people with disabilities to participate fully and equally in society. Accommodation must respect the dignity of people with disabilities, which means that it must be provided in a
way that preserves their autonomy as much as possible. For example, accommodation should be based on the person’s own needs and preferences, not on stereotypes or assumptions. Accommodation should also involve the person in the decision-making process, and allow them to consent or decline the proposed solution.
Accommodation should also be provided in a manner that is discreet, confidential, and respectful of the person’s privacy
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By respecting the autonomy of people with disabilities, accommodation can enhance their self-esteem, self-worth, and empowerment. It can also prevent them from feeling marginalized, stigmatized, or devalued. Therefore, autonomy is a key element of dignity, and dignity is a core principle of accommodation.
4. How is the duty to accommodate fulfilled in the unionized work environment? The duty to accommodate in the unionized work environment is fulfilled by the collaboration and cooperation of the employer, the employee, and the union. The employer has the primary responsibility to identify and implement reasonable accommodation measures for employees with disabilities, up to the point of undue hardship. The employee has the
responsibility to communicate their accommodation needs, provide relevant information, and accept reasonable offers of accommodation.
The union has the responsibility to support the accommodation process, consent to any changes to the collective agreement that may be necessary, and refrain from any actions that would impede or undermine the accommodation
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5. How would an employer meet its duty to accommodate an alcohol- or drug-
dependent employee? Provide an example of how an employer may accommodate an employee who requires marijuana for medical use.
An employer would meet its duty to accommodate an alcohol- or drug-dependent employee by following these steps:
Recognize the signs of substance dependence, such as changes in behaviour, performance, or attendance, or a positive drug or alcohol test
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Talk to the employee about the issue in a respectful and confidential manner, and ask if they need accommodation for their disability
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Gather and consider the relevant medical information from the employee’s health care provider, such as the diagnosis, prognosis, treatment plan, and accommodation needs
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Accommodate the employee by providing reasonable measures to support their recovery and enable them to perform their job, such as granting a leave of absence, modifying their work schedule or duties, referring them to an employee assistance program, or allowing them to use prescribed medication
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Follow up and adjust the accommodation as needed, based on the employee’s progress, feedback, and changing needs
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An example of how an employer may accommodate an employee who requires marijuana for medical use is:
The employee informs the employer that they have a medical authorization to use cannabis for chronic pain, and requests accommodation for their disability
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The employer requests a medical certificate from the employee’s doctor, confirming the diagnosis, the dosage, the frequency, and the method of consumption of cannabis, as well as the impact on the employee’s ability to perform their job
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The employer assesses the employee’s accommodation needs, taking into account the nature of their work, the safety risks, and the potential impairment effects of cannabis
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The employer accommodates the employee by allowing them to use cannabis during their breaks, in a designated area away from the workplace, and by providing them with a locker to store their medication securely
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The employer monitors the employee’s performance and well-being, and adjusts the accommodation as necessary, in consultation with the employee and their doctor
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6. How must employers accommodate employees who are pregnant or breastfeeding? Employers must accommodate employees who are pregnant or breastfeeding by providing reasonable measures to support their health, safety, and well-being, and to enable them to perform their job duties, up to the point of undue hardship. Undue hardship considers factors such as cost, health, and safety risks. Some examples of accommodation are:
Allowing flexible work hours, part-time work, or remote work to accommodate medical appointments, breastfeeding needs, or other personal circumstances
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Modifying the work station, location, or duties to reduce physical strain, exposure
to harmful substances, or other potential hazards
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Providing a quiet, private, and comfortable environment for pregnant employees to rest during breaks, or for breastfeeding employees to pump or nurse their babies
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Providing appropriately sized uniforms, safety apparel, or equipment to accommodate the changing body shape of pregnant employees
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Granting a leave of absence before or after the birth or adoption of a child, in accordance with the relevant employment standards or collective agreements
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Employers must also respect the dignity and privacy of pregnant or breastfeeding employees, and involve them in the decision-making process regarding their
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accommodation needs
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Employers should also prevent and address any discrimination or harassment that pregnant or breastfeeding employees may face in the workplace
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7. Which party has the burden of proof in an undue hardship claim? Explain some of the
evidentiary limits that govern such claims. In an undue hardship claim, the party that is responsible for providing the accommodation has the burden of proof. This means that the employer, the service provider, or the education provider must show that the accommodation would cause undue or excessive hardship, based on objective, real, and
direct evidence.
The person requesting the accommodation does not have to prove that
the accommodation can be accomplished without undue hardship
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Some of the evidentiary limits that govern undue hardship claims are:
The evidence must be quantifiable, in the case of cost, or verifiable, in the case of health and safety risks
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The evidence must be related to the specific accommodation requested, not to general or hypothetical scenarios
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The evidence must consider the benefits, deductions, and outside sources of funding that may offset or reduce the cost or risk of the accommodation
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The evidence must demonstrate that the accommodation would alter the essential nature of the enterprise, or substantially affect its viability, in the case of cost, or that the accommodation would create a serious and imminent threat to the health and safety of others, in the case of risk
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These are some of the evidentiary limits that apply to undue hardship claims.