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What is a human rights remedy?
The purpose of a human rights remedy is to put the person who has been discriminated against back in the position they would have been in, had the discrimination or harassment not occurred. An adjudicator who makes a final decision about the complaint may order certain remedies provided in The Human Rights Code or the parties may agree to certain remedies as part of a settlement agreement.
What kinds of remedies can be ordered?
If the adjudicator decides that the Complainant has been discriminated against or harassed as alleged in the complaint, the adjudicator can order the Respondent to do any of the following:
- ensure it will not contravene The Code in the future which may include immediately ceasing the discriminatory practice or behaviour, reviewing or changing the discriminatory policy or practice, or taking human rights training;
- make amends or apologize for the discriminatory practice or behaviour;
- compensate the Complainant for any lost wages, income or benefits resulting from the discrimination in an amount that is deemed appropriate;
- compensate the Complainant for injury to their dignity, self respect and feelings as a result of the discrimination or general damages, in an amount that is deemed appropriate;
- pay a penalty or exemplary damages as punishment for malice or recklessness, in an amount that is deemed appropriate; or
- implement an affirmative action or special program where appropriate.
How is the impact of discrimination measured?
Discrimination impacts a person’s dignity, self respect and feelings. The impact of discrimination on the Complainant is difficult to quantify however human rights law tells us that the amount of compensation should be meaningful. As well, it should be determined based on the nature and extent of the discrimination and its impact on the individual guided where possible by decisions made in similar circumstances in Manitoba and across Canada.
When are lost wages or income appropriate?
If the discriminatory action is to terminate a person’s employment or if discrimination or harassment results in a person losing wages, income, tips, bonuses, commissions or other benefits, an appropriate remedy may be to compensate the person for any financial losses as a result of that discrimination. The amount of compensation should attempt to make the person “whole” and should take into account any amounts earned or received following the discriminatory action. Human rights law tells us this amount is different than any amounts paid in lieu of notice of termination or severance.
How do you ensure this will not happen again?
Human rights remedies will almost always involve the Respondent agreeing to do things to ensure that the same type of situation does not arise again. This can be done by agreeing to take human rights training, to develop and/or distribute a policy, or to otherwise change the way something is done.
Does the Commission have to approve the settlement?
The Commission does not approve settlements. The mediator assists the parties in thinking about settlement terms from a human rights perspective. The mediator also assists in drafting the settlement documentation. If the parties reach a settlement, the Commission must terminate the complaint process and close its file.
Is the settlement always confidential?
The parties may agree to keep all or some of the settlement terms confidential. If the settlement involves making a change that will affect the public generally or a large group of people, it may be important to ensure the public can still know about the change. Often the parties agree that they can still talk about the fact that a human rights complaint was filed and what it was about. The Commission can talk about any complaint or settlement without identifying the parties, for education purposes.