HUMAN RIGHTS ISSUES
This section looks at Human Rights and Volunteers including Discrimination in Selection of Volunteers. It discusses two laws: Alberta Human Rights, Citizenship and Multiculturalism Act and the Canadian Charter of Rights and Freedoms
In general, Canadian law protects people from discrimination. This area of law, known as human rights law, deals with people’s right to equal treatment without discrimination and the accommodation of their differences. There are a variety of statutes that deal with different aspects of human rights, but they don’t all apply to volunteers. The two laws that may apply are the Alberta Human Rights, Citizenship and Multiculturalism Act and the Canadian Charter of Rights and Freedoms.
I. HUMAN RIGHTS AND VOLUNTEERS
The Human Rights, Citizenship and Multiculturalism Act states as a general principle that every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, sexual orientation, age, record of offences, marital status, family status or handicap.
At first glance, it would appear that this Act does not apply because it deals with employment and volunteers are not employees. The issue, however, is not totally clear. Currently, there are no decided Alberta human rights decisions involving volunteers, so a definitive answer cannot be given. However, the general attitude in society today is against any form of discrimination, so an organization would be wise to conduct itself as if the Human Rights, Citizenship and Multiculturalism Act did apply to its selection and placement of volunteers.
A. Discrimination in Selection of Volunteers
Having said this, however, there may be instances where discriminating is necessary. Section 7(1) of the Human Rights, Citizenship and Multiculturalism Act prohibits employers from refusing to hire people on the basis of certain criteria, but section 7(3) states that this does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
For example, a male volunteer may be inappropriate in a rape crisis centre or woman’s shelter. Similarly, a female volunteer may not be the best choice to work with dangerous male sexual offenders in prison. The organization must consider not only its needs and those of the volunteer but also the needs of those it serves. If an elderly patient simply refuses to allow anyone under 50 years of age to assist him, a volunteer over the age of 50 may have to be recruited in order to ensure that the needs of the patient are met with dispatch, safety and economy. The same would hold for a nonprofit organization whose purposes are to serve and promote the interests of people on the basis of physical or mental disability, race, religion, age, marital status, political belief, colour, ancestry or place of origin. Such groups may well be exempt from human rights legislation when it comes to granting a preference to those they serve.
Where those types of exceptions are not at issue, it is generally wisest for organizations to act without discrimination. For example, an organization may have a duty not to discriminate when:
- selecting participants
- selecting volunteers
- protecting volunteers and participants from discrimination once they have been selected, and
- taking reasonable steps to prevent or stop discrimination when it occurs, such as between a participant and volunteer, or between two volunteers.
An organization that fails to address and resolve discrimination issues may face a human rights complaint. If such a complaint were found valid, a human rights tribunal might then direct the organization to compensate the person and change its practices.
The onus would likely be on the organization to make reasonable attempts to correct a discriminatory policy or activity. It may need to show that reasonable efforts were made to accommodate the person, to the point where financial hardship or some other serious issue prevented the organization from other efforts at accommodating the volunteer.
II. DOES THE CHARTER OF RIGHTS AND FREEDOMS APPLY?
The Canadian Charter of Rights and Freedoms is part of the Canadian Constitution. It gives individual citizens the power to bring claims against government actions (e.g. laws) or agencies that they feel violate the rights (such as freedom of religion, freedom from discrimination) to which they are entitled. The Charter states that it applies only to the government, so if an organization is an entirely private enterprise, the Charter will have no application. However, if a volunteer organization is a government department, the Charter must be taken into consideration. The difficulty arises in deciding whether the vast number of organizations which are funded by government or established by an Act of government, are covered by the Charter. The Supreme Court of Canada has held that the Charter will apply only to an “exercise of, or reliance upon, governmental action.” Rather than trying to speculate whether a court would consider the organization a government agency or not, the most prudent course is to treat the Charter as if it applies. Organizations should resist any form of discrimination in its choice of volunteers, or in its provision of services to clients except in situations where it is unavoidable, as has been described.