When I learned about the application of human rights in the workplace, I was exposed to concepts such as duty to accommodate, duty to inquire, and duty to refer. All three concepts relate to an employer’s legal obligations to provide a work environment that is free of barriers, harassment and discrimination while upholding the principle of equity and acknowledging intersectionality. To me this translates to the intention of legislation and how it should influence our behaviours at work.
In addition to legislation influencing us, there are things like collective agreements, policies, and espoused values that exist with the same influential intention. Put another way, all of these things are created to provide “rules of engagement” at work. Taking this even further, if you consider culture to be about norms and behaviours, then these types of written documents are guides to how we are to treat one another in the workplaces – they are safeguards to our human rights at work. One would assume with these safeguards in place employees are being treated with dignity and respect.
And although integrating legislation or other safeguards into our organizations is no easy feat, employees continue to fight for their rights.
There are unfortunately many cases that bring to light the systemic barriers (including employer mindsets and behaviours) that have prevailed – blatantly disregarding these safeguards. A shameful example is the Canadian Human Rights Commission (CHRC), the central government agency specifically designed to root out discrimination. In 2020 nine of employees filed a group grievance alleging “Black and racialized employees at the CHRC (Canadian Human Rights Commission) face systemic anti-Black racism, sexism and systemic discrimination.”
Three years after filing the grievance, Carole Bidal, the delegated official at the Treasury Board of Canada Secretariat responsible for responding to the grievance declared that “the CHRC has breached the ‘No Discrimination’ clause” of the collective agreement. I was among the many that shook my head in disappointment and whose heart wept for the employees who had to endure discrimination at the CHRC. Que in a woke 21st century version of the “walk of atonement” from the Game of Thrones.
So if legislation amongst other employment related safeguards aren’t stopping discriminatory practices or behaviour, what will? I’m thinking as Diversity, Equity and Inclusion warriors continue to battle for employee rights, perhaps a new employer ‘duty’ should be considered – the ‘duty to include’. Before diving into what I mean by this, let’s do a refresh of the other three duties: accommodate, inquire, and refer.
Three established employer ‘duties’
The duty to accommodate is about removing discriminatory barriers that are prohibited by the Canadian Human Rights Act. The purpose of the duty to accommodate is to ensure that employees are not unfairly excluded where working conditions can be adjusted without undue hardship. It requires employers, service providers, or institutions to make reasonable modifications to accommodate the needs of individuals or groups who face barriers or discrimination based on protected characteristics such as race, colour, age, and gender identity or expression, as listed in the Canadian Human Rights Act.
The general principle behind the duty to inquire comes from the Supreme Court of Canada’s 1992 Renaud decision, which established that an employee required to disclose sufficient information to their employer to enable it to fulfill its duty to accommodate – the employer cannot accommodate something of which it is unaware.
The duty to inquire underscores the importance of being proactive, curious, and thorough in seeking information or understanding in cases where an employee may be requiring support, accommodation, or other ways to increase their capacity at work. It is essential for employers to balance the duty to inquire with respect for privacy and confidentiality.
The duty to refer is more nuanced in its application in workplaces. It refers to a moral, legal, or professional obligation employers have to direct or recommend an employee to a more suitable or specialized resource when they require additional assistance or expertise beyond what the manager (acting on behalf of the employer) can provide.
Although the duty to refer is often associated with professionals in the healthcare, law and social work fields, it has made its way to workplaces – and for good reason. When a manager recognizes that their skills, knowledge, or resources are insufficient to address an employee’s needs, they have a responsibility to refer the employee to another professional or service – for example to their employee assistance program. Ultimately, the duty to refer is rooted in the principle of ensuring the well-being and best interests of the person seeking help – that is the employee.
The duty to include
The idea of duty to include came to me while co-delivering an equity workshop last month in Toronto. The workshop is curated by Catalyst, a non-profit advancing diversity, equity, and inclusion in workplaces through research and learning. I guess you can say that Catalyst was the ‘catalyst’ for me thinking of duty to include as another employer obligation!
The duty to include can be understood as an ethical or moral obligation to actively welcome, involve, advocate, and ‘lift’ employees who have been historically marginalized, underrepresented, or excluded in workplaces. It emphasizes the importance of recognizing and valuing the diversity of perspectives, experiences, and identities.
The duty to include promotes the idea that all individuals should have equal opportunities for participation, engagement, and decision-making processes in various spheres of society, such as workplaces, educational institutions, communities, and policymaking. For example, the duty to include in education emphasizes providing equitable learning opportunities to all students, regardless of their background, abilities, or identities. It involves implementing inclusive teaching methods, accommodating diverse learning needs, and creating a safe and supportive environment that celebrates and respects individual differences.
The duty to include in governance recognizes the importance of diverse representation and meaningful participation in decision-making processes. It involves engaging individuals from different backgrounds and communities in shaping policies, programs, and initiatives that affect them, thereby ensuring their voices and perspectives are heard and considered. And finally, the duty to include in workplaces entails ensuring fair and inclusive hiring practices that actively seek diverse candidates, eliminate bias, and provide equal opportunities for career advancement. It involves creating a work environment that values and respects different perspectives, backgrounds, and contributions, fostering a sense of belonging for all employees.
Audre Lordes’, Sister Outsider, Essays and Speeches, includes “The Master’s Tools Will Never Dismantle the Master’s House“. I cannot think of a better way to conclude my thoughts on the legal and moral obligations employers have to eradicate discrimination from workplaces than by referring to Lorde’s sage and poignant thought metaphor. We are still seeing in 2023 travesties in our workplaces related to discrimination. Many of us may be working in organizations not built by or for us – organizations that are “the master’s house”. And so, let’s create our own tools, like the duty to include, to fight the injustices that continue to plague us. By embracing the duty to include, employers can contribute to fostering more equitable and inclusive workplaces. It requires ‘real-deal’ action and not performative behaviours or blatant disregard for the current legal construct ideas that exist. Employers must actively seek out and value diverse perspectives, provide equal opportunities for participation, and dismantle barriers that prevent full and meaningful engagement of marginalized or underrepresented employees in workplaces.
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