The Competing Rights Analytical Framework

We have all been there: a significant global event occurs, it’s all over the news, and eventually, competing perspectives clash in the workplace producing conflict. What is an employer to do?

In this article, we will provide an overview of the competing rights analytical framework contained in the Ontario Human Rights Commission’s Policy on competing human rights along with some practical tips employers can use to address human rights related workplace conflicts.

The Competing Rights Analytical Framework

The framework consists of three stages: recognize claims of competing rights, reconcile claims of competing rights, and make a decision. Applied to the workplace, the first stage involves understanding the concerns raised by the employees in conflict. The goal is to hear the employees’ perspectives on the situation and how they would like the situation resolved. The second stage involves determining whether the competing rights at issue can be harmonized through compromise. If no compromise is possible, the final stage may involve stepping back from the conflict to determine whether one right will need to prevail over another, keeping in mind all legal obligations and relevant workplace policies.

This three stage process is accompanied by eight interpretive principles that can help along the way. They are:

1. No rights are absolute

2. There is no hierarchy of rights

3. Rights may not extend as far as claimed

4. The full context, facts and constitutional values at stake must be considered

5. Must look at extent of interference (only actual burdens on rights trigger conflicts)

6. The core of a right is more protected than its periphery

7. Aim to respect the importance of both sets of rights

8. Statutory defences may restrict rights of one group and give rights to another.

Practical Considerations for Employers

Resolving claims of competing rights can be very difficult for everyone involved. The following five tips can help employers identify and respond to conflict arising from competing rights.

1. Consult all relevant policies

Before, taking any steps to understand the issues within the conflict or speaking to any of the parties involved in the conflict, consult your workplace policies. Familiarize yourself with the key definitions, procedures and expectations of workplace conduct. Some policies may contain provisions that will resolve competing rights. Rely on these provisions as a starting point.

2. Do your research

When a conflict arises, develop a basic understanding of the issues that are involved. For example, if the conflict involves the use of gender-affirming pronouns in the workplace, refresh your knowledge of the protected grounds of gender identity and gender expression in the Human Rights Code. The time spent learning about key issues can foster a sense of trust in the process and produce creative options for resolution.

3. Focus on impact, before intent

It is a well-established human rights principle that determinations of discrimination will prioritise the impact on a person experiencing discrimination rather than the intent of the person who has engaged in the discriminatory conduct. Discriminatory and harassing behaviour that was not intentional can be just has harmful, if not more harmful, than intentional behaviour, and should be examined carefully.

4. Avoid treating human rights issues as “personality conflicts”

Identity matters. Interpersonal conflicts that appear to be caused by clashes between ‘strong personalities’ may also have human rights issues at their core. Take the time to understand what has caused the conflict and consider whether any of the protected grounds (i.e. sex, race, place of origin, sexual orientation, etc.) might be factors in the conflict itself. Reviewing the grounds of discrimination to explore their applicability to workplace conflict can help an employer avoid missing important elements of the conflict that require resolution.

5. Don’t forget the (work) environment!

Conflict between individuals can impact the wider workplace community. At all stages of human rights related conflict resolution, consider whether employees have been indirectly affected by the conflict and may have an interest in being part of a workplace restoration strategy.

A final thought

Human rights related workplace conflicts are challenging (but not impossible!) to address. The tips in this article will help you to avoid some of the common pitfalls employers face. Indeed, taking any step to address these types of conflict is better than hoping the situation will resolve on its own. (Spoiler alert: It rarely does.)

Njeri Damali Sojourner-Campbell is a lawyer at Hicks Morley who specializes in human rights law in the public sector, including municipalities.

This article provides general information and should not be relied on as legal advice or opinion.