How do we prepare a response to the complaint?

When the Commission notifies you that a discrimination complaint has been made against your organization, you can choose to prepare a response to the complaint.

A response is your organization’s side of the story.

Under the Canadian Human Rights Act, the Commission must deal with the complaint, whether or not you offer your organization’s side of the story. The Commission will make its decision based on the information provided. If your organization does not participate, the complaint could be sent to the Tribunal for further inquiry, even if you have a valid defence.

The Commission is available to provide guidance on how to prepare your response or explain your organization’s side of what happened.

Remember: there is no set formula to preparing your response and no official template. Choose the approach that works best for your organization. You may choose to provide your response or supporting information in writing, but the Commission is open to other ways of doing things. For example, you could ask the investigator to discuss your position by phone.

How to plan your response

Before taking any action, it is important to plan how you will prepare your response by asking yourself:

Who should be responsible for preparing the response?

As the respondent, you should designate one person to be your representative and handle the complaint. Your representative will be the main contact between your organization and the Commission, and will be responsible for finding out and presenting your side of the story.

When do I consider settling the complaint?

From the beginning you will have to decide how you think the complaint could be resolved. Once you have thought about possible solutions, write them down and share them with the Commission. You can do this at any time throughout the Commission’s dispute resolution process.

How to Prepare Your Response

Step 1: Gather information related to the complaint.

Being informed about all of the details related to a discrimination complaint will help you (or your representative) explain your side of the story.

Start a file. Keep copies of everything related to the complaint. This includes writing down any decisions that are made about the complaint.

Ask Yourself:

What kind of discrimination is being alleged?

Understanding what kind of discrimination is being alleged is an important part of resolving the issues effectively. This means understanding which of the grounds of discrimination is being alleged, as well as the discriminatory practice that it is being linked to.

Is there an internal dispute resolution process that could be used instead?

The Commission supports the use of internal dispute resolution processes that are fair, flexible, effective and efficient. The Commission’s practice is to refer discrimination complaints back to internal dispute resolution processes, when they are available. You should notify the Commission as soon as possible, if your organization has a dispute resolution process.

Is there any reason why the Commission should not deal with the complaint?

Tell the Commission as soon as possible if you believe:

  • The issue does not fall under the Commission’s jurisdiction.
  • The issue is not linked to one of the grounds of discrimination.
  • The issue is not based on a discriminatory practice in the Canadian Human Rights Act 
  • The complaint is trivial, frivolous, vexatious, or made in bad faith. 
  • The complaint has not been filed within one year of the alleged discrimination occurring.

What do you know about the events that led to the discrimination complaint?

Learn more about the events that led to the complaint to help you (or your representative) clarify your side of the story.

Make a list of the people you need to talk to about the complaint and the documents you need to review.

Talk to the people involved in the complaint to learn their side of the story. Ask as many questions as you need to, to understand what the complaint is about.

Carefully review any documents that are relevant to the complaint.

Step 2: Examine the discrimination allegation(s). 

There are three ways your organization can show that the discrimination did not happen or that it was allowed by the Canadian Human Rights Act:

No discrimination occurred; there is a reasonable explanation for what happened.

Review the allegations in the complaint, any records related to the allegations and anything you learned from talking to people. If there is a reasonable explanation that can be supported with evidence, you may be successful in arguing that there was no discrimination. Using evidence, explain your side of the story to the Commission representative and the complainant.

The action is necessary, because avoiding it would cause undue hardship.

Even a decision that is discriminatory may be justified, if there is good reason or it could not be avoided. If this is the case, you (or your representative) must be able to explain the reason.

Ask yourself three questions to decide if the discrimination is necessary:

  • Was the action or decision based on a legitimate reason? There must be a legitimate reason for the discrimination based on job or service requirements. 
  • Was the action or decision carried out in good faith? Unintentional discrimination sometimes happens. If it happens, it is important to show that there was an honest, or good faith, belief that the particular action or decision was necessary. 
  • Was the action reasonably necessary? Decide if the impact could have been avoided or minimized, by asking yourself if there are ways to include more people, and if there are other options that would not be discriminatory.

Once you have considered these questions, decide if changes can be made to the policy, practice or physical structure that caused the complaint, to make it less discriminatory. As an employer and/or service provider it is your responsibility to provide alternative arrangements for people whenever possible.

If changes would cost too much, or create risks to health or safety, your organization may be able to claim undue hardship. However, 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.

The discrimination is part of a special program or policy. 

A special program is any plan, arrangement, rule, policy or legislative provision designed to advance the equality of disadvantaged groups. It is not discriminatory of you to adopt or carry out a special program. Any organization or company that is regulated by the federal government can have one.

The reason for the group’s disadvantage must be related to one of the grounds of discrimination or membership in any of the four designated groups defined in the Employment Equity Act.

The courts have determined specific criteria and principles that ensure special programs are consistent with human rights principles. The basic rules set out by the courts are as follows:

  • A special program must advance equality. 
  • A special program must address genuine disadvantage. 
  • A special program must be tailored to meet the actual needs of the disadvantaged group.
  • The impact of the special program on third parties must be considered.
  • Special programs must be proportional to the degree of under-representation or disadvantage.
  • The special program should be temporary.

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