Back to Basics: Human Rights 101, and How it's Applied in a Pandemic

Given all this talk of human rights and unfairness in the context of anti-restriction protests, let's clear up some myths.

For clarity, when I talk about "human rights" in Canada, I'm talking very specifically about rights under the human rights statutes that exist in every jurisdiction in Canada - NOT about the Charter of Rights and Freedoms, which is different. (The Charter limits only what government can do. These statutes create obligations for other people and organizations.)

We're talking about laws like the (Federal) Canadian Human Rights Act, the Alberta Human Rights Act, and the Ontario Human Rights Code.

The Basics: What These Laws Do

The core goal of these laws is to stop discrimination on certain 'prohibited grounds' (like age, sex, race, religion, disability, and various others) in specified 'social areas' (like employment, services, etc.).

The specific grounds and social areas vary. Each law has different sets of lists, and even the grounds can vary as between social areas. Generally the 'grounds' are matters that people can't or shouldn't be expected to change, and/or ones central to a person's identity. The social areas generally cover various types of commercial relationship. So if I refer to my employee by an ethnic slur, that's pretty much always going to be a problem under human rights statutes. If I shout an ethnic slur at the driver who cut me off, that - while distasteful - is unlikely to be illegal.

Generally speaking (though Ontario has a narrow exception), you can't sue in court on the basis of discrimination. There's a statutory process that you can (and, in most cases, have to) use, going to the applicable human rights commission and/or tribunal.

A lot of complaints/applications end up made on the basis of general unfairness - either not tethered to a proper 'prohibited ground' or not within one of the designated social areas. These are not within the jurisdiction of the human rights adjudicators, and such complaints get unceremoniously dismissed.

For present purposes, there are four REALLY IMPORTANT things to note:

1. Outside of human rights statutes, there is not usually anything illegal or actionable about 'discrimination', per se.
2. Within human rights statutes, prohibitions against discrimination are limited to specified 'prohibited grounds' of discrimination.
3. To the best of my knowledge, 'vaccination status' is not an identified prohibited ground in ANY jurisdiction. (Also noteworthy, 'political belief' isn't usually, though there are exceptions.)
4. Even where a human right is engaged, these aren't absolute. Even discrimination on the basis of prohibited grounds can be justified in some cases.

A Business' General Right to Exclude

One of the most fundamental principles of property law is that the owner of a space has the right to decide who can or can't enter it. (In lease situations, this right is often more-or-less assigned to the renter.)

It is a common myth that a business open to the public is automatically required to admit all members of the public. This is simply not true. If I operate a business, I'm entitled to decide who is allowed in and who is not allowed in. I don't need a reason to exclude a given individual. If I stand outside my business with a nickel in hand and decide with a coin flip whether or not a given person is allowed to enter, that is perfectly acceptable. (An insane business practice, but not illegal.)

This right is subject to very few caveats. It doesn't get you out of contractual obligations. If I'm contractually required to give an employee reasonable notice of termination, I can dismiss an employee without notice (or just cause), escort them out, and tell them not to come back...but then I'll likely get sued for wrongful dismissal.

Also, while I can exclude someone for no reason at all, I can't usually exclude somebody for a reason specifically prohibited by law - i.e. on the basis of a prohibited ground.

But if you start talking about Nuremburg Code in the context of trying to convince someone that a business can't deny you entry, you've gone deep into tinfoil hat conspiracy theory territory. There's no legal merit to it.

"Discrimination" isn't always a bad word

Straightforwardly, I can't stand outside my business and decide who gets to enter based on skin colour. However, if I stand outside and decide who gets to enter based on whether I approve aesthetically of their footwear, that is generally going to be okay.

That's discriminatory by any definition of the word, but it is usually not going to offend any human rights legislation.

Except when that requirement, by its effect, discriminates on the basis of a prohibited ground. For example, if I set a requirement that no person is allowed in unless they're wearing crocs, it's probably going to be an issue for me to enforce that against somebody who doesn't have any feet. That will trigger what we call a 'duty to accommodate'.

Sometimes, people well-versed in human rights law will use the word 'discriminatory' as shorthand to capture prohibited discrimination. ("You can't fire somebody because she had a child! That's discriminatory!") But the word, itself, doesn't always carry that connotation. We discriminate on all sorts of bases: When we hire, we often discriminate on the basis of relevant experience. When we give promotions or raises, we usually discriminate on the basis of performance. There's nothing wrong with that.

So when you start using the word 'discriminatory' to describe a distinction that's not based in a prohibited ground ("My employer refused to give me a raise just because I had the worst sales record in the department! That's discriminatory!"), the appropriate answer to that is "So what?"

Vaccination Status and Politics Aren't Usually Prohibited Grounds

As I said, the lists of prohibited grounds vary, but you won't find 'vaccination status' anywhere on them.

So when someone protests "They refused to hire me because I'm not vaccinated!", again, the correct response is "So what?"

In most jurisdictions (including Alberta and Ontario), political belief isn't a prohibited ground, either, so discrimination on the basis of political belief is another 'so what?' issue.

There's nothing illegal about requiring employees to be vaccinated. There may be contractual question-marks about whether telling an existing employee to 'get the shot or get out' breaches the employee's contract, but it's still something an employer can (almost always) do without violating any statute.

There are incredibly rare circumstances, however, where a person might be able to connect vaccination status to a prohibited ground - namely, religion or disability. Very few religions have good faith restrictions surrounding vaccination, and there are very few disabilities that result in somebody being medically unable to get the vaccine. (In fact, for most immune-affecting disabilities, the vaccine is prioritized.) However, they exist, and in those cases a person may be entitled to accommodation.

(I can't emphasize enough just how rare this is, however. Can't tell you how many calls I've gotten from people who will say it's a religious objection, but when I ask for more detail, they go off on a diatribe about vaccine safety concerns. If you don't want the vaccine because you're concerned about possible adverse effects from it, that's not a religious objection.)

Even Discrimination on Prohibited Grounds Can Sometimes Be Justified

Suppose, for a moment, that I weren't vaccinated because I had a good faith religious exemption. The resulting entitlement to accommodation is not a freestanding right to be treated the same as people who are vaccinated.

What it means is that places that might otherwise just say "Go away" are obligated to offer reasonable accommodations up to the point of undue hardship.

My employer would have to think about whether there are arrangements it can make to continue to employ me without compromising the health and safety of the workplace. Maybe I can work from home. Maybe I can be insulated from contact with other staff and customers. Maybe additional PPE and regular negative tests might ameliorate safety concerns. If there are reasonable accommodations available, the employer can assign one. (Note: It's not my choice as the employee. My entitlement is to "reasonable" accommodation, not to my 'preferred' accommodation.)

Likewise with retailers: Maybe curbside pickup would be an option, or there are other solutions to be found.

If there are no reasonable accommodations to be found, however, or any such accommodation would impose 'undue hardship' on the organization, the organization can still circle back to "Nope, nothing we can do for you, just go away."

So if I have that (rare) legitimate religious objection to vaccination, but my employer refuses to accommodate me, there are a few considerations a tribunal would look at...and several that they really won't.

1. A Tribunal is UNLIKELY to look too closely at the reasonableness of the employer's risk tolerance. Employers owe a range of obligations - OHS obligations to maintain a safe and healthy work environment; human rights obligations to people in the workplace who might be vulnerable; obligations to the customers that might come in. If an employer decides in good faith that a vaccine policy is a necessary safety measure in the furtherance of these obligations, the Tribunal will likely not question that determination. (Unless there's reason to doubt the bona fides of the risk assessment, such as an employer claiming a low risk tolerance while simultaneously acting in a way that flagrantly disregards best practices for COVID risk management in other ways.)
   
   
2. A Tribunal will almost certainly NOT be persuaded by arguments regarding the efficacy of vaccination as a safety measure. Anti-vaxxers tend to see vaccination in black-and-white: Either it works, in which case vaccinated people have nothing to worry about, or it doesn't, in which case a vaccine mandate is ineffectual too. What they fail to appreciate is that there are levels of effectiveness that are greater than zero but less than 100%, which means we're really talking about probability management: A person who is vaccinated is less likely to become infected, and is also less likely to pass the infection along to others. So my employer's vaccination requirement provides a couple layers of protection, neither one of which is foolproof but both of which are helpful. A Tribunal is going to understand and accept a vaccination policy as a risk management tool.
   
   
3. A Tribunal MAY be persuaded by a coherent argument that the essential components of the job can be effectively performed remotely. The employer may have to show that it gave appropriate consideration to whether or not remote work was an option. If they failed to consider it (and it's not plainly obviously off the table - say, if my job is a cashier in a grocery store), that's a problem for the employer. If they did consider it but came to a conclusion that it wasn't an appropriate option under the circumstances, the Tribunal will assess whether or not that conclusion was reasonable.
   
   
4. A Tribunal may look at whether or not an employer gave due consideration to other accommodation options within the workplace (say, additional PPE, barriers in the workspace, additional social distancing, minimizing contact with others, etc.), but if an employer can say in good faith, "Yeah, we looked at our options, but the additional risk was unsustainable in our view", then a Tribunal would likely defer to that assessment, and not substitute its own view of whether it would be 'safe enough'.

If you're noticing a theme here, there's a reason for that: While assessing the reasonableness of accommodation, including associated safety risks, is not foreign territory to Tribunals, the magnitude of COVID-related risks (of serious illness and death to anyone in the workplace) will usually be sufficient for a Tribunal to be reluctant to force the employer (and its other staff, contractors, customers, etc.) to bear additional risk that comes with unvaccinated persons in the workplace.

Broadly, the impact of OHS-related risks on an undue hardship analysis is contextual, looking at the nature of the risk, by whom that risk is to be borne, the increase in magnitude of the risk based on the accommodation, and more. In practice, though, Tribunals are more likely to wander in if the risk is remote and highly hypothetical, and/or where the person seeking accommodation is the only one potentially affected.

Where an employer comes in saying, in good faith, 'we're concerned about the possibility of our staff or customers getting seriously ill from COVID and want to take measures to make this as safe an environment as reasonably possible', my expectation is that Tribunals will defer to that determination.

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Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.