Abolish human rights tribunals?
Two of the candidates for the leadership of the Ontario Conservative Party are suggesting that the Ontario Human Rights Tribunal be abolished. They believe the whole issue of human rights should be handed over to the courts. The suggestion is that this will weed out frivolous nuisance claims.
Other commentators have argued that since it is not profitable for companies to engage in discriminatory practices, the market will eventually take care of itself and human rights tribunals are redundant.
Unfortunately, it can be quite profitable for companies to engage in discriminatory practices. That will be especially the case if people who have suffered from discrimination aren’t likely to be awarded compensation that makes it worthwhile to hire a lawyer and sue.
Let’s consider the example of Sally. Sally, let’s imagine, has ten years experience being a quality control inspector in the meat processing industry. She has taught courses on the subject to other inspectors and was a leader in developing standards for her previous employer. Her plant has shut down and she has great references from her boss.
Sally attends an interview for a job with a potential employer in the same industry as a quality inspector. The employer is very impressed with her resume and notes in the interview that they have not had anybody with as much experience apply. Sally starts to be uncomfortable, however, when she is asked her marital status and how many children she has. The potential employer finds out that she has been married within the last three years and has not yet had children.
Although Sally knows that these questions are totally inappropriate, she doesn’t feel she has the option of blowing the interview by refusing to answer. But as she does answer these questions, the look on the interviewer’s face changes from enthusiastic to reserved and the interview is soon brought to an end. After she finds out that she did not get the job she also hears through the grapevine that they hired a quality inspector with one year of experience in a different industry who just so happens to be a woman past childbearing age. Luckily for Sally, she is offered a position paying the same the next week by a more enlightened employer.
If the two Conservative leadership candidates have their way, Sally will be out of luck.
Sure, Sally could hire a lawyer but damages for human rights violations in Canada are nothing like the big awards you see on American television. Sally has no wage loss to claim since she got a job the next week from somebody else. If Sally brings her lawsuit and loses, she’ll be responsible for not only for her legal costs but also some of the costs of the company.
If she wins, chances are that she would not be awarded more than $5,000.00 in general damages. The stakes just aren’t high enough to take the risks for any rational person.
The free market certainly won’t take care of this. While the potential employer did not get the benefit of Sally’s experience and expertise, it calculated that the cost of hiring a replacement and retraining to cover two or three maternity leaves was far more than the cost of training a less experienced person who would never take such a leave.
Sally has suffered discrimination on the basis of her gender, her marital status and her family status and effectively be left out in the cold.
While the present human rights tribunal system is far from perfect and does allow some nuisance claims to get further in the system than they would if the complainant had to hire a lawyer up front, the price is worth it.
I hope that most people believe that it’s simply not tolerable that we have a system that effectively sanctions Sally’s treatment by making it economically unviable for justice to be done.
The Human Rights Code does not just apply to employment situations but also a variety of other contexts, including accommodation and services. Few people will hire a lawyer and bring a lawsuit because they were denied admission to a nightclub because of the colour of their skin when the best they can hope for is a financial award of a few thousand dollars.
Under our present system, Sally can file a complaint and get a hearing. She will get some help from the government-funded legal aid clinic but ultimately the tribunals are designed to allow people to represent themselves without too much frustration. While that does encourage some frivolous claims, for the sake of us all, it’s well worth the price.
As published in the Hamilton Spectator, June 1, 2009.