HIV/AIDS and Human Rights in the Workplace

3Information Series1 HIV/AIDS and theWorkplace InformationSheetsHIV/AIDS and Human Rights inthe WorkplaceWhat do you think of when you think of human rights?Perhaps you think about hiring practices and thequestions that can be asked during an interview, orperhaps you think about accessibility for persons withdisabilities. When we talk about human rights in theworkplace, a number of questions can come to mind.Human rights laws are in place to create a workenvironment that promotes respect for the dignity andworth of all Canadians, mutual respect andunderstanding, and equal opportunity to participate inand contribute to the community. But where do theserights come from? Whom do they protect and what areyour legal obligations and responsibilities?The following information sheet provides anintroduction to human rights in Canada and basicdetails about human rights principles and concepts inthe workplace.The United Nations Universal Declaration ofHuman Rights- Preamble to the Declaration"Recognition of the inherent dignity and theequal and inalienable rights of all members ofthe human family is the foundation of freedom,justice and peace in the world and is in accordwith the universal declaration of human rightsas proclaimed by the United Nations".• The United Nations Universal Declaration of HumanRights was signed by member countries in 1948.Since then the Canadian government has beenworking towards making universal human rights apart of Canadian law.1 Nicholas, Suite 726, Ottawa ON K1N 7B7Telephone: (613) 233 7440 ? Fax: (613) 233 8361E-mail: info@icad-cisd.com ? Web: www.icad-cisd.com• The Universal Declaration of Human Rights isimportant for Canadians because it has provided uswith a framework of human rights goals andstandards to which Canadian legislation, institutions,and society can aspire.• It is the basis for many of our human rightsprotections in Canada and around the world.• The Universal Declaration of Human Rights does notinclude a description of practical steps governmentscan take to ensure that human rights are protected. Itprovides guiding principles. It does not provideinstructions on how each country should implementthem.Protecting and Upholding Human Rights in theWorkplaceThere are four key mechanisms to protect and upholdhuman rights in the Canadian workplace, they are:The Canadian Charter of Rights and Freedoms:• This is a binding legal document that protects thebasic human rights of all Canadians. It describes theGovernment's responsibility in upholding thoserights. It is often cited in legal cases pertaining toThis is one in a series of information sheets addressingHIV/AIDS as an episodic disability in the workplace.1. Benchmarking Organizational Policy Development andImplementation2. A Rights Based Approach to Workplace Policy Development3. HIV/AIDS and Human Rights in the Workplace4. Discriminatory Business Practices5. Privacy Protection in the Workplace6. Employment Standards in the Workplace7. Case Study8. Practical Steps for Implementing Policies and Procedures9. HIV/AIDS and the Duty to Accommodate10. Examples of Successful Job Accommodation11. How to Use the Policy Template Package12. Policy Template13. Frequently Asked Questions

human rights issues and guarantees that our laws andthe justice system operate in accordance withfundamental rights and freedoms.The Canadian Human Rights Act and TheCanadian Human Rights Commission:• Applies to workplaces that are integral to a federalundertaking or the operation of which falls withinfederal legislative authority.• Covers workplaces such as federal departments andagencies, crown corporations, the post office,airlines, buses and railways which travel betweenprovinces, chartered banks, telephone companies,radio or television stations, places of business wherelabour issues are governed by the Canada LabourCode and other federally-regulated industries.Provincial Human Rights Laws and Legislation:• Each province has its own human rights law, usuallycalled a Code or a Charter, that covers other types oforganizations not included under federal legislation.Most not-for-profits are covered under provincial orterritorial human rights legislation.Human Rights Commissions, Tribunals and Offices:• Oversee the application of provincial human rightslaw and are also responsible for investigatingcomplaints, providing legal channels to hear thecomplaints, finding solutions and working to educateus about human rights and promoting equality forgroups in society that are frequently the target ofdiscrimination.In addition, each province has Employment Standardsthat set out in law, certain minimum rights to whichemployees are entitled in the workplace covering manyaspects of employment including, but not limited to:minimum wage, overtime, termination and severancepay, hours of work, public holidays and leave fromwork.Note: The Employment Standards Act and HumanRights legislation may apply at the same time. Thesetwo laws are not mutually exclusive.In Canada there are also federal and provincial labourlaws that cover unionized workplaces, ensuring theright to organize, encourage collective bargaining,promote harmonious labour relations and provide foreffective and fair dispute resolution.Human Rights Principles and Concepts in theWorkplaceEvery person has a right to equal treatment with respectto employment without discrimination and everyperson who is an employee has a right to freedom fromharassment in the workplace by the employer or agentof the employer or by another employee because of thefollowing protected grounds (from the Ontario HumanRights Code): race, ancestry, place of origin, colour,ethnic origin, citizenship, creed, sex (includespregnancy), sexual orientation, age, record of offences,marital status, same-sex partnership status, familystatus, disability and/or perceived disabilityNote: Protected grounds can vary between provincesor territories. Please consult the Human Rights Officein your location.The right to "equal treatment with respect toemployment" covers every aspect of the workplaceenvironment and employment relationship includingjob applications, recruitment, training, transfers,promotion, terms of apprenticeship, dismissal andlayoffs. It also covers rate of pay, overtime, hours ofwork, holidays, benefits, shift-work, discipline,performance evaluations and any other terms andconditions that may apply.Who is Protected By Human Rights Legislation atWork?The protection extends to employees, temporary, casualand contract staff, including sub-contractors, as well asother persons in a work context including but notlimited to employees from employment agencies andpersons hired as medical or personal attendants. The2

Ontario Code does not refer specifically to volunteersbut the Commission takes the position that the phrase"equal treatment with respect to employment" insection 5 can be interpreted to protect anyone in awork-like context including individuals who workwithout a salary to gain experience, such as those on apracticum or being mentored and persons providingvolunteer services. While there have been no Ontariodecisions on these issues, some British Columbiadecisions found that the province's human rights la wapplied to discrimination against a volunteer, under theareas of employment and services.If you are in doubt about the interpretation of "personsin a work context", or for further information pleasecontact your local human rights office.Who is Responsible for Upholding Human Rights inthe Workplace?Complaints can be filed against employers, contractors,unions, and directors or individuals such as otheremployees and supervisors. An employer's liability forharassment and/or discrimination committed by itsemployees and agents is not necessarily limited to theworkplace or work hours.Human rights law includes the notion of the "extendedworkplace". Liability could attach to behavior oractions that occur away from the physical workplacebut that have implications or repercussions in theworkplace. For example, staff may be held liable fordiscriminatory incidents taking place during businessmeetings or trips, company parties, or other companyrelatedfunctions.Disability is a Protected GroundHIV/AIDS as well as other episodic disabilities is aprotected ground. The Ontario Human Rights Code,section 10, defines disability to include:a) Any degree of physical disability, infirmity,malformation or disfigurement that is caused bybodily injury, birth defect or illnessb) A condition of mental impairment ordevelopmental disabilityc) Learning disability, or a dysfunction in one or moreof the processes involved in understanding or usingsymbols or spoken languaged) A mental disorder, ore) An injury or disability for which benefits wereclaimed or received under the Workplace Safetyand Insurance ActComparable provincial and territorial human rightslaws are in place across Canada. All define disabilityas a protected ground.Human Rights and DisabilityAccommodation is a means of removing barrierspreventing persons with disabilities from fullparticipation in the workplace in a way that isresponsive to their individual circumstances.People with a disability have the right to have theirindividual needs accommodated, up to the point ofundue hardship, in order to allow them to perform theessential duties of their job.3