The Universal Declaration and Information Technology:
Redefining Rights?

Ron Byrne, Research Associate, Atlantic Human Rights Centre

As we are all now aware, information technology is challenging us to be more protective than ever of particular rights. The obvious right which is most often noted as being challenged by information technology is the right of privacy. A number of speakers have already referenced this challenge in their own comments. It is not my intention to repeat their analysis or to even build upon them. Rather, it is my hope that you will find my comments provide you with a view on how rights are redefined and what this means in the context of information technology evolution. To this end, I encourage you to speculate on information technology as being more than the Internet, more than the web, more than government databases. I encourage you to see the evolution of biometrics (a process of information storage based on unique bodily elements such as fingerprints, voice recognition, even brain waves), DNA mapping, sperm banks, and other areas, as all being examples of information technology. It is, therefore, in the wider context that I ask you to consider my comments.

For the purpose of today's presentation, I have chosen to focus on the legal issue of discrimination in the workplace, particularly the concept of "duty to accommodate", as a concrete example of how rights may change over time. I ask you to consider whether it is the right which changes or whether it is merely our interpretation of the right which does? My opinion is that the right and how we interpret that right are synonymous for the person affected. It may strike you as odd, as I proceed, that my presentation does not have a great deal, specifically, to say about information technology. It is my hope, however, that you will see parallels in what I present and the eventual treatment of information technology challenges to human rights and how they are interpreted. It is also my hope that you do not find my comments either too long-winded or too irrelevant to our discourse over the last couple of days.

The common law has always been somewhat vague in its dealings with protection against discrimination. In fact, a Supreme Court of Canada decision in 1982 affirmed that the common law afforded no redress for victims of discrimination and that such protections were creatures of statute and constitutional developments. As a result, the history of anti-discrimination law in Canada has been one of statutory developments rather than common law prohibitions. Yet the development of statutory protections has not been a smooth, uninterrupted development. It has met with opposition both from political and judicial quarters. I believe today is no exception to this trend.

I believe that human rights, in the workplace or otherwise, are under increasing attack today. The rise of a severe right-wing ideology, coupled with severe economic realities, is placing previously hard fought and won issues back on the political agenda. The rise of the right-wing agenda in the United States, for example, is causing issues such as affirmative action, abortion, and social support programs, to be placed back "on the table" with an agenda, in my opinion, to reduce and/or to remove support for the existence of these programs.(1) The nature of human rights legislation in the provinces, as just another piece of legislation, and not entrenched, despite Supreme Court of Canada pronouncements about the legislation being something more than just another statute, raises the spectre of a particular government repealing same. Note my earlier comments re Alberta. Inherent in this attack is the sense that there is "someone" to blame. Unfortunately, that "someone" is often singled out as the poor, the disadvantaged, or the otherwise minimized individual or group within our society. Therefore, it is increasingly important for the legal system to realize and protect the most fundamental freedoms in an unequivocal and united voice. Failure to do so will result in the fragmentation of voices to the point where all battles previously fought and won will be overturned. This is not to say that I am pessimistic about the realities facing human rights. I believe human rights will ultimately triumph, but to negate the cyclical nature of the attacks to which human rights protection gives rise, it is absolutely essential that the law be clear on the importance of these rights within our society.

Since 1990, the Canadian legal system has adopted the approach of favouring individual rights over that of collective rights in the employment world, with a caveat and this caveat is the test known as "undue hardship." I hope I do not bore you but a prefatory, and relatively simple, explanation of the court's treatment of discrimination in the workplace is necessary.

Since the Renaud(2) decision in 1990, the Supreme Court of Canada has imposed a "duty to accommodate" individual needs in the workplace provided such accommodation does not impose an undue hardship on the employer or union. This is not as positive as it may sound. Just as in the past, parties will be able to rely upon the phrasing of the judgements in question to allow themselves an "out" from having to accommodate the needs of their employees or membership. This is so due to the "reasonable accommodation" requirement and the consequent emphasis on "undue hardship." While some objective standard is required, the court has not been fully clear on what exactly this standard may be or how it will be applied. Thus, while a number of factors are highlighted when dealing with the issue of undue hardship, for example, and what constitutes the same, it is not clear exactly how these are to be applied. For instance, the Court mentions that there will need to be evidence which is more than anecdotal but not necessarily scientific evidence, in order for the undue hardship test to be met. What does this mean? For the purposes of this presentation, I will assume that the law has evolved to the point where the legal maxims of "reasonable accommodation" and "undue hardship" are givens.

At this point it is important to note that there may be times where a "discriminatory" environment is necessary or required. As proof of this one only needs to point to education environments where the tenets of the particular religion, and adherence to those tenets, are central to the teaching role. A number of cases have upheld this approach and, in the context of the current discussion, have seen the requirement of holding the "proper" views as a valid bona fide occupational requirement. My own view, however, is that the use of the term discrimination in this context is inappropriate. It ignores the "reasonable connection" to the workplace envisioned by such a situation and which eliminates the discriminatory effect of such a regulation.

So, in what way has the treatment of discrimination in the workplace evolved over time? How has the right to be free from discrimination been re-defined and enforced? I am not going to take you through an exhaustive analysis. Rather, I will briefly provide you with the essential elements and then wrap up by expressing how I believe a similar evolution is available for the interplay between technology and human rights.(3)

How can an employer, union, or other party avoid discriminating against their employees, members, or fellow workers? First, in my opinion, the answer to this question is very simple when faced with direct discrimination cases. The easiest way to avoid discriminating in these cases is to ensure that the particular rule in question is being implemented for reasons which are "reasonably connected" to the workplace and not for reasons in contravention of the relevant human rights legislation. Particular attention will need to be paid to the relevant legislation and the tests outlined therein. In the case of Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2. S.C.R. 489, Justice McIntyre outlines the requisite elements for a successful defence of a bona fide occupational requirement:

... [the work rule] must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety, and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

There are a number of tests outlined in the above quote which the party seeking to minimize discrimination must meet. Further, the quote provides a "recipe" for the construction of a workplace which will be held discrimination free, at least as much as that is legally or humanly possible.

The essential elements are such that they will require the party seeking to uphold or institute a particular work rule to consider not only the purpose of the rule but how it affects the individual or group to which it may apply. Please note: No such protection was developed in the Canadian legal system prior to 1985. Much of this protection arose from religious discrimination cases but has been now applied more generally. It is an example of the evolution of rights within our country. The party seeking to establish the rule must review the policy with the following questions in mind:

Is this rule being implemented for reasons which are honest and being imposed in good faith?
Is the rule being implemented for sincere reasons aimed at improving or protecting the operation of the enterprise in question?
Is there a possibility that the rule in question may have an unintended effect which will act to discriminate against a particular individual or group?
How, objectively, does the rule relate to the work in question and what objective criteria support this position?
To what extent may this rule affect a particular individual or group?
If this rule will negatively affect a particular individual or group, how does it do so and why is it necessary?
Is the rule one which discriminates on its face, such as a mandatory retirement rule, or is it one which may be discriminatory in its effect, such as a mandatory Friday evening work shift, i.e. adverse effect.
If the rule is one which creates an adverse effects impact, how can the rule or the workplace be modified to accommodate the needs of those so adversely affected?
Less than 13 years ago, the above tests did not exist as law. The courts' analysis was far more deferential to employers and unions and individuals had no redress. It has taken less than 13 years for the courts to reach the point noted above. And it's not over. It is only a matter of time, in my opinion, that the courts will move to treating adverse effect discrimination and direct discrimination alike and a workplace rule will have to meet the test of undue hardship. The undue hardship test is also composed of a number of elements but I will not outline them here.

This brings me to my hope around the challenges we are currently facing regarding human rights and information technology. There is no doubt that the legal system has yet to come to terms with the balancing of the benefits of technology against its detriments. We are in the embryonic stage of information technology developments. To suggest that the legal system should be ready to meet as yet undefined challenges is overly optimistic. Rather, the legal system will evolve to meet these challenges as it has been doing and is currently doing in the area of discrimination. Just as we may never meet all the challenges offered by those who wish to discriminate we may never meet all the challenges offered by information technology. It is relevant to note that the important thing is to embrace the struggle and strive for the ideal. The Universal Declaration preamble states:

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom...

I ask you to note that this statement is free of qualification and it is with this spirit of non-qualification that I remain hopeful today. Information technology is merely another challenge to the way we live, it is not an insurmountable one.

Thank you.

"A DAY IN THE LIFE...OR HOW TO HELP BUILD YOUR SUPER FILE*
Nothing to hide? It's just as well...from the time we get up in the morning until we climb into bed at night we leave a trail of data behind us for others to collect, merge, analyse, massage and even sell, often without our knowledge or consent. And there is no law against it (except in Quebec).

8:30 Exit apartment parking lot (Cameras, and possibly a card, record departure)
8:35 Pull onto toll highway (Device records your entry and exit points to send bill at the end of the month)
8:42 Caught in traffic jam, call work to delay meeting (Cellular phone calls can be easily intercepted; new personal telephones will signal your whereabouts to satellites to deliver calls)
9:17 Enter office parking lot (Card records entry and time, cameras monitor garage)
9:20 Enter main office/plant door ("Swipe" cards record comings and goings; active badges allow others to locate you anywhere in the building)
9:25 Log on to computer (System records time in)
9:29 Send personal E-mail to friend, business message to colleague (Both can be read by the employer; simple deletion does not erase them from the computer's hard drive)
10:45 Call your mother (Supervisors may monitor phone calls)
11:00 Make a delivery using company vehicle (Many company vehicles have geo-positioning devices to plot vehicle location; some have "black boxes" to record driving habits)
12:05 Stop at bank machine (System records details of transactions, cameras overhead or in machine record your behaviour)
12:10 Buy birthday gift for friend (Credit card records details of purchase, retailer's loyalty card profiles purchase for points and directed discounts; banks may use spending patterns to help assemble complete customer profile)
12:35 Doctor's appointment (Health cards will soon contain small computer chips to record your complete medical history on the card, blood samples contain DNA which could be tested for wide variety of conditions, doctor's diagnosis may need to be disclosed to insurance company if you buy life or disability insurance and details sent to centralized registry in US run by insurance companies)
1:15 Pick up prescription (Some provinces have on-line drug networks which share your drug history with pharmacies across the province and may be disclosed to police tracking drug abuse)
1:30 Return to work (Card records your return)
2:45 Provide urine sample for employer's new drug testing program (Reveals use of targeted drugs but not impairment; sample may also reveal use of legal drugs such as birth control pills, insulin and anti-depressants)
3:30 Meeting in secure area (Pass through security which scans retina to confirm identity)
5:30 Complete first draft of report (Computer records content, can also store keyboard speed, error rate, length of pauses and absences)
6:15 Leave office (Exit recorded by computer, entry system and parking lot)
6:30 Buy groceries (Debit card purchase recorded, loyalty card tracks selections for marketing and targeted discounts)
6:45 Pick up video (Computer records viewing preferences, Social Insurance Number; store may sell your viewing preferences-say, Erotica-to other companies)
7:20 Listen to phone messages (Your phone has recorded callers' phone numbers, displays your number when you call others-unless you enter code to block the display)
8:20 Order clothing from catalogue (Company records personal details and credit card number and may sell the information to database-list-marketers)
8:30 Subscribe to new magazine (Many magazines routinely sell their subscribers' list to mass mailers)
8:35 Survey company calls (Company gathers political views, social attitudes and personal views. Some surveys are actually marketing calls to collect personal data for future sales. Legitimate surveys destroy personal identifiers once data processed)
8:45 Political canvasser at the door (Political contributions of more than $100, amounts and the party, are listed in public records)
9:10 Log onto Internet (Your choice of chat groups and your messages can be monitored and a profile assembled by anyone, including police; some Web sites monitor your visits); see Privacy in Cyberspace p.27.
Increasingly, living a modern urban life seems to mean there is nowhere to hide. In our search for security and convenience, are we hitching ourselves to an electronic leash?"

*Extract from the 1995-1996 Annual Report of the Privacy Commissioner, as noted on Privacy Commissioner's web page.

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1. Witness the pronouncements, several years back of Alberta's Minister responsible for the human rights code and commission concerning the need for major reform in this area and her ruminations about the elimination of the human rights code and commission in the province. On a positive note, Ralph Klein's recent decision not to appeal the decision concerning gay rights in the province.

2. The Renaud decision was one in which an employee argued that he was being discriminated against due to the failure of the employer and union to allow him exemption from working a Friday evening shift. This shift was seen as a holy day for the employee's religion and his religion required strict observance of a "no-work" holy days.

3. Note: The law is not static but is drafted, certainly in the area of human rights, as a result of efforts on the part of people. The Universal Declaration was a result of such action. This is true for all legislation in this area.

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© 2007 Atlantic Human Rights Centre, St. Thomas University