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1. Introduction

This handbook complements Your Guide to Understanding the Canadian Human Rights Act, available at
http://www.ccdp-chrc.gc.ca/publications/naichract_loicdpina/toc_tdm-eng.aspx 

1.1 Who this Handbook is for

This handbook is for people who work for First Nations governing bodies responsible for providing service to First Nations communities. This includes, but is not limited to:

  • Chief and Council members
  • band managers, officers and administrators
  • accountants, financial and human resource officers
1.2 Purpose of this Handbook

This handbook is intended to help you, as a First Nation’s manager, understand and address human rights issues in your organization and community. For a list of related readings and resources see Appendix B.

1.3 Legislation

Terms in bold are explained in the glossary in Appendix A of this handbook. 

The Canadian Human Rights Act (the Act) is a federal law. The Act protects all people legally allowed to be in Canada from discrimination. Under the Act, people who feel they have experienced discrimination by a federally regulated service provider or employer can make a complaint to the Canadian Human Rights Commission (the Commission). Information about changes to the Act that affected First Nations can be found in Appendix C.

Aboriginal and treaty rights have constitutional protection under section 35(1) of the Constitution Act, 1982. A non-derogation clause has been included in the Canadian Human Rights Act. The purpose of the non-derogation clause is to ensure that the application of the Act does not affect the constitutionally protected rights of Aboriginal peoples.  

There is also an interpretive provision that requires anyone applying the Act to consider First Nations legal traditions and customary laws. This is subject to certain limits such as gender equality.

Other Laws that Protect Human Rights

The Commission is responsible for administering the Canadian Human Rights Act. However, there are other laws that protect Aboriginal peoples’ human rights as well.

They include:

  • provincial and territorial human rights laws
  • the Canadian Charter of Rights and Freedoms
  • section 35 of the Constitution Act, 1982 
  • the United Nations Declaration on the Rights of Indigenous Peoples
  • First Nations human rights processes and laws
1.4 Jurisdiction

Canada’s Constitution splits legal responsibility, or jurisdiction, between the federal and provincial or territorial governments. Self-governing First Nations also have responsibilities, as negotiated between the First Nation and the federal government. As a result, jurisdiction may vary from one First Nation to another.

The federal government regulates some employers and service providers. These include:

  • federal government departments, agencies and Crown corporations
  • chartered banks
  • airlines
  • television and radio stations
  • interprovincial communications and telephone companies
  • interprovincial transportation companies, like buses and railways that travel between provinces
  • First Nations governments and some other First Nations organizations
  • other federally regulated industries, like some mining companies 

However, not every organization run by First Nations people or located in a First Nations community is federally regulated. Provinces and territories regulate other businesses and service providers, like restaurants and grocery stores. They also have their own human rights laws.

1.5 The Commission and the Tribunal

The Act created both the Canadian Human Rights Commission and the Canadian Human Rights Tribunal. These organizations operate independently of each other and of the federal government.

The Commission promotes the principle of equal opportunity and works to prevent discrimination by:

  • Promoting an understanding of and respect for human rights among federally regulated organizations.
  • Ensuring that employers promote workplace equality for the four groups named in the Employment Equity Act: women, Aboriginal people, people with disabilities, and members of visible minorities.
  • Dealing with discrimination complaints made against federally regulated employers or service providers. This includes sending them to the Tribunal for further examination.
  • Representing the public interest to advance human rights for all Canadians. A matter is in the public interest when the decision has the potential to clarify, influence, shape or define human rights law.

The Tribunal:

  • Holds public hearings and decides on cases that the Commission refers to it.
  • Makes orders to resolve discrimination. In these roles, the Tribunal is like a court.

2. Discrimination and Human Rights Law

2.1 What is Discrimination?

Terms in bold are explained in the glossary in Appendix A of this handbook. 

Discrimination is an action or decision that treats a person or a group differently and negatively for reasons like race, age or disability. Discrimination happens when someone is denied an opportunity, benefit or advantage, such as a job, promotion, service or housing, because of race, age, disability or another ground of discrimination.

It is important to note that you do not have to intend to treat someone unfairly to cause discrimination. What matters is the effect on the person making the complaint, even if the impact was not intentional.

EXAMPLE: Trevor is an Aboriginal employee that wants to travel to the funeral of his second cousin who was like a brother to him. He asks his supervisor for bereavement leave to go to his cousin’s funeral. Trevor’s supervisor tells him that he cannot take the time off, because the organization’s bereavement policy only gives employees leave when an immediate family member dies. Trevor tells his supervisor that he feels this is discrimination, because the policy’s definition of immediate family does not reflect his Aboriginal values. His supervisor says that she cannot make an exception to the policy for him, because if she did, she would have to make exceptions for everyone. Trevor decides to file a discrimination complaint with the Commission because his employer did not accommodate him. 

2.2 Grounds of Discrimination

Grounds of discrimination are reasons a person may experience discrimination. There are 11 reasons or ‘grounds’ that are protected under the Canadian Human Rights Act (the Act). This means that federally regulated employers and service providers cannot discriminate against people for these reasons. 

The 11 grounds of discrimination protected under the Act are:

  • race
  • national or ethnic origin
  • colour
  • religion 
  • age
  • sex  
  • sexual orientation
  • marital status
  • family status
  • disability
  • a conviction for which a pardon has been granted  

Examples of discrimination based on these reasons or ‘grounds’:

Political affiliation and off reserve residency on their own are not prohibited grounds of discrimination under the Canadian Human Rights Act. However, the Commission may be able to deal with allegations of discrimination related to political affiliation or off reserve residency, if they are linked to one of the 11 grounds of discrimination listed in the Act, such as sex, family status or disability. 

  • Race, national or ethnic origin: A bank will not give someone a loan because they are Aboriginal.
  • Colour: A man is not allowed to get on a plane because he is black.
  • Religion: An employee is told that they cannot smudge in the workplace, even though no one in the office has allergies or sensitivities.
  • Age: An election code requires candidates for leadership to be over 45.
  • Sex: A woman is fired because she is pregnant.
  • Sexual orientation and marital status: A policy provides benefits to married couples but not to same-sex couples or common law couples.
  • Family status: A man is not given a promotion because his boss does not like his brother.
  • Disability: A recreation centre is not wheelchair accessible.
  • Pardoned conviction: Although they have already been granted a pardon, someone is told that they are not allowed to run for election to the Band Council because of a past conviction.

Under the Act a “disability” can be physical, psychological or intellectual. This includes past or existing drug or alcohol addiction. 

2.3 Discriminatory Practices

The Act forbids discriminatory practices, if they are based on one of the grounds of discrimination. Discriminatory practices cover the following areas:

Employment

  • hiring, termination, discipline and promotion decisions and policies
  • maternity or parental leave, sick leave and bereavement leave decisions and policies
  • job ads and interviews
  • workplace policies that deny people opportunities
  • different pay for work of equal value

Services Available to the Public

  • access to federal government programs, projects and services
  • access to First Nations programs, projects and services
  • physical accessibility to government buildings and premises
  • other services offered by federally regulated private sector companies that are generally available to people, like a bank loan or an airline ticket

Rental and Housing

  • access to government programs for housing for Aboriginal people
  • access to housing or rental space administered by a First Nation

Public Advertisements and Messages

  • public signs
  • hate messaging over the phone or on Canadian websites

Harassment (in the workplace or provision of services)

  • offending or humiliating someone physically or verbally
  • threatening or intimidating someone
  • making unwelcome jokes or comments about another person’s race, religion, sex, age, disability or another ground of discrimination
  • making unnecessary physical contact with someone (for example, touching, patting, pinching or punching) – this can also be assault

As an employer, you are responsible for providing a harassment-free workplace. You must take appropriate action against any employee who harasses someone else. You can be held responsible for harassment committed by your employees. Have an anti-harassment policy and provide anti-harassment training to supervisors and staff to avoid this.  

Retaliation

  • threatening, intimidating or treating another person badly because that person filed a discrimination complaint
  • retaliation is a serious violation of the Act, with fines up to $50,000
2.4 Elements of a Discrimination Complaint

To file a discrimination complaint with the Commission, someone must reasonably believe all of the following things:

  • A discriminatory practice happened.
  • What happened was based on a ground of discrimination.
  • The effect of what happened was negative.
2.5 Responses to a Discrimination Complaint

There are ways to show that alleged discrimination did not occur or was justified under the Act.

Reasonable Explanation

Sometimes, people feel they experienced discrimination, but there is a reasonable explanation for what happened.

Justification

Treating people differently is not considered discrimination if it is an unavoidable part of how you do business. Sometimes discrimination can be explained if it is an occupational requirement or a requirement of how a service is provided.

Special Programs

The Act allows special programs to prevent, eliminate or reduce disadvantages for groups when those disadvantages would be based on, or related to, one of the grounds of discrimination or the Employment Equity Act.

The Commission has a Policy on Special Programs to help employers make sure their special programs meet the requirements set out in either the Canadian Human Rights Act or the Employment Equity Act. For information on where to find the Commission’s Policy on Special Programs see Appendix B.

As an Aboriginal employer, your organization may want to justify hiring Aboriginal people, instead of non-Aboriginal people, to serve your community. Your organization may be able to do so by adopting an Aboriginal employment preference policy. An Aboriginal employment preference policy can protect hiring and promotion criteria that give preference to Aboriginal people.

Aboriginal employment preference policies are intended to help First Nations who want to govern themselves, and develop their own culture and economy. For example, this could mean hiring Aboriginal people to work in your First Nation’s government or
school(s).
 

2.6 Duty to Accommodate

The duty to accommodate is an employer and/or service provider’s obligation to take steps to eliminate the different and negative treatment of individuals, or groups, protected by the Act.

Sometimes people need to be treated differently to prevent or reduce discrimination. For example, asking all job applicants to pass a written test may not be fair to a person with a visual disability. In such cases, the duty to accommodate may require that alternative arrangements be made to ensure full participation of a person or group. In other words, it may be necessary to treat someone differently in order to be fair.

The duty to accommodate has limits. Sometimes accommodation is not possible because it would cause the employer or service provider undue hardship

EXAMPLE : Gina’s job requires that she wear a uniform. The uniform is supplied and paid for by her employer. Gina is pregnant and requires a new uniform to meet her changing physical needs. She tells her employer about her needs. The employer agrees that she can have a new uniform, to be altered as needed throughout her pregnancy, at the employer’s expense.  

2.7 Undue Hardship

Under the Act, an employer or service provider can claim undue hardship when adjustments to a policy, practice, by-law or building would cost too much, or create risks to health or safety. There is no precise legal definition of undue hardship or a standard formula for determining undue hardship. Each situation should be viewed as unique and assessed individually.

It is not enough to claim undue hardship based on an assumption or opinion, or by simply saying there is some cost. To prove undue hardship, evidence must be provided as to the nature and extent of the hardship.

EXAMPLE: A First Nation adopts a drug policy requiring all its commercial fishers to be drug free. To ensure this, the commercial fishers must take drug tests regularly. An employee who uses marijuana for medical purposes alleges that this is discrimination based on disability. The drug policy is based on safety concerns and may be justified because fishing under the influence of drugs could cause danger to the fisher and/or other people.  

Glen’s Story

Glen works as the Band Manager for the Spruce Tree First Nation. One of his employees, Andrea, is a member of the First Nation and has worked for the Band Council as a bookkeeper and administrator for seven years. Glen is concerned that Andrea’s work performance deteriorates every fall.

The Band Council recently told Andrea that if her work does not improve, the Band Council will fire her. Andrea started crying and said she felt the Band was discriminating against her. When Andrea spoke to Glen, he suggested that Andrea talk with someone, like a doctor, and talk to him again in a week.

The Band Council and Glen do not know that Andrea suffers from depression every September. It is the anniversary of her daughter’s death five years ago. During that time, she drinks because she gets depressed.

The doctor agreed that Andrea’s depression and drinking were disabling conditions. The doctor referred her to a therapist for counselling and helped her find an alcohol treatment program away from her community. The doctor also prescribed anti-depressants.

The next week, Andrea talked to Glen again, and told him that she really wanted to attend the treatment program. She gave him:

  • A formal request for a leave of absence due to medical disability.
  • A letter from her doctor confirming her medical disability.
  • A letter from her therapist saying that she is taking counselling.
  • A work plan showing how her work will be covered while she is away.

Glen spoke with the Band’s human rights advisor before responding to Andrea’s request. The advisor explained that Andrea’s depression and associated behaviours are a disability, and that the Band has a duty to accommodate Andrea. The advisor also told Glen that if Andrea relapses, the Band would have a duty to accommodate her again as long as she got help.

Glen accepted Andrea’s work plan and told her the Band is looking forward to her return to work. 

3. Ways to Prevent Discrimination and Respect Human Rights

Terms in bold are explained in the glossary in Appendix A of this handbook.

A good prevention strategy involves identifying and addressing discrimination at the earliest opportunity. In part, this means changing, refining and clarifying policies and practices to eliminate barriers to service or employment.

Discrimination, even unintentionally, can arise from policies, practices, and ways that people deal with each other in your organization and community. Using effective prevention tools can build your organization’s capacity to avoid discrimination and resolve human rights issues before they ever reach the Commission.

The checklists in Appendix D will help everyone in your organization or community play a part in preventing discrimination. Use the checklists to develop organizational practices that promote a respect for human rights. This will help prevent discrimination complaints.

3.1 Encourage Leadership Commitment

Leadership makes a difference. Having all of the leaders in your organization and/or community publicly commit to human rights is the first step.

Appointing a human rights officer or having a human rights portfolio assigned to one of your Band Councillors can help bring attention to human rights issues.

3.2 Review the Human Rights Aspects of Your Organization’s Operations

Reviewing your organization’s operations can show you where situations may be unfair or give someone a reason for a discrimination complaint. You can prevent discrimination complaints by reviewing your policies, practices and by-laws to make sure they respect human rights.

Managers do not always have time to review every aspect of their operations. Having an employee or a legal advisor to do the review for you will help relieve this pressure.

RESOURCE TIP: The person doing the review should have training in human rights and the Canadian Human Rights Act (the Act). To get the review process started, consider hiring a post-secondary summer student who has technical knowledge of human rights or the law. 

The information you gather during the review will help your organization decide if changes are needed to reduce or eliminate discrimination. This kind of documentation can also help if a complaint is ever filed about one of your policies, practices or by-laws.

Use the questions below to review the human rights aspects of your by-laws, policies, and practices.

Ask yourself:

  1. What is the goal?
  2. Is it as inclusive as possible?
  3. Does it create barriers for any person or group(s) based on the 11 grounds of discrimination? If not, go to question 5.
  4. Is there a way to eliminate the barrier?
  5. Have you talked to the person or group(s) being excluded about possible alternative arrangements?
  6. Have you fully documented any related health, safety and/or cost issues?
  7. Is there an appeal process included if someone disagrees with it?
  8. Based on your review do human rights principles need to be added to it?

WHAT TO DO IF: A federal government department has set eligibility criteria for programs or services that your First Nation government administers and concerns are raised about potential discrimination. You cannot change criteria set by a federal government department, but you can take steps to have them deal with the potential discrimination:

  1. Make notes about your concerns and keep them in a file.
  2. Make notes about any complaints you receive from members and residents of the community.
  3. Write to the department sector overseeing the administration of the program or service to tell them about your concerns and any complaints you have received. 
3.3 Develop Human Rights Protection Policies

Having policies that protect your organization from discrimination complaints is not only good for your organization – it is the right thing to do. It can take a lot of time, money and human resources to participate in the Commission’s dispute resolution process. Human rights protection policies like these will help you prevent discrimination complaints:

  • an anti-harassment policy
  • an anti-discrimination policy
  • a duty to accommodate policy
  • a pregnancy and parental leave policy
  • a community-based dispute resolution policy

Include aspects of your First Nation’s culture in your human rights protection policies as well. This can lead to a greater awareness of your culture in your community.

Besides preventing discrimination complaints there are other benefits to having human rights protection policies. They:

  • foster an environment of respect for human rights
  • let people know about their rights, roles and responsibilities
  • show that your First Nation took appropriate steps to avoid discrimination 

RESOURCE TIP: Pool resources with neighbouring First Nations, or those represented in your Tribal Council, to develop model human rights protection policies that your community can adapt to suit its own needs.  

3.4 Examine Your Infrastructure (Physical Assets)

Look at your organization’s physical assets as part of the review process. This includes any buildings, facilities and vehicles owned by the First Nation. Decide if people with disabilities can easily use them. You may need to adapt buildings by adding or renovating ramps, door access, taps, elevators, stairways, roads or lighting. Creating safety policies that prevent the obstruction of hallways and identify emergency exits can also improve the accessibility of your physical assets.

Any construction that is needed to make your physical assets more accessible can be set out in a multi-year plan. You can make this plan part of the regular maintenance cost cycles for your First Nation’s physical assets. Using this approach can lead to savings and the ability to phase in expenses over time.

The Commission will not fund the changes that your First Nation may need to make to meet the requirements of the Act. However, either the Commission or your provincial/ territorial human rights commission may be able to help set up human rights training at little or no cost. Contact information for these other human rights agencies is in Appendix E.  

3.5 Provide Human Rights Training

After you (or your staff) have completed the review process, provide human rights training to your leadership, managers and employees. Making everyone aware of the potential human rights implications of your organization’s policies, practices and by-laws, better prepares them to prevent discrimination.

RESOURCE TIP: Use a “train the trainer” model in your community to keep costs down. “Train the trainer,” means a small number of people get human rights training. After, they use what they have learned to train other people in your community.

Share training costs with a neighbouring community or Tribal Council to help reduce expenses. 

3.6 Talk to the Community about Human Rights

During the review process you should start to plan how you will educate and inform your community about human rights. This can help you explain policy, practice or by-law changes that you may need to propose to reduce any discriminatory effects. Planning will help you decide how and when to share information to make everyone aware of their rights and responsibilities as community members. Always use clear language, and, where appropriate, the language of your community.

You can give people information by:

  • print
  • Electronic and social media, like e-mail, websites, blogs and Facebook
  • door-to-door visits
  • community radio or television
  • DVDs
  • any other way that is appropriate and effective for your community

Use community-wide information meetings, family meetings, Elders’ forums and/or focus groups to talk to community members on and off reserve. This gives everyone in the community the chance to be included in the process. When you hold meetings try to make it as easy as possible for Elders and other community members to attend.

3.7 Deal with Discrimination Informally

Sometimes even with careful planning people may experience discrimination. Procedures that provide instruction to staff and community members on how to deal with discrimination issues that come up will reduce the chance of issues turning into complaints. They will also help you build a response if someone ever makes a discrimination complaint to the Commission. You can make these procedures an appendix of the policy that they are related to.

Fully document any attempts to resolve the issue.

  • Start a file.
  • Get information from any documents that relate to the issue, such as a policy, interview notes or minutes of Council meetings.
  • Talk to the people involved and any witnesses. Find out each person’s side of the story. Take notes when you talk to people and put them in the file.
  • Keep copies of everything related to the issue.
  • Write down any decisions that are made about the issue. 
  • You can build on this by planning and developing a community-based dispute resolution process.