May 16, 2017
The Human Rights Code prohibits discrimination based on certain proscribed grounds. With the exception of age and Indigenous identity, the proscribed grounds are not specifically defined in the Code. However, we do know that the enumerated grounds are generally interpreted very liberally.
Section 13 of the code prohibits discrimination in the employment context as follows:
13 (1) A person must not
- refuse to employ or refuse to continue to employ a person, or
- discriminate against a person regarding employment or any term or condition of employment
because of the Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
Except where an employer can prove a bona fide occupational requirement, employment-related decisions based on these grounds will constitute discrimination contrary to the Code. Each of the proscribed grounds is discussed below.
RACE, COLOUR, ANCESTRY OR PLACE OF ORIGIN
Race discrimination occurs when an employer treats an employee or an applicant differently or unfairly because of that person’s race, colour, ancestry or place of origin.
Race and ancestry typically refer to discrimination based on one’s ancestral history. Colour refers to one’s skin tone, whereas place of origin typically refers to one’s birthplace.
Race discrimination can occur in a number of ways including:
- verbal abuse or threats
- denial of services or benefits
- unwelcome remarks, name-calling
- not hiring or promoting someone
- insulting pictures, drawings or signs
- hate publications or symbols
For more information concerning race discrimination and racism, read Human Rights in British Columbia: Racial Discrimination.
In the past, discrimination against Indigenous persons was included within race discrimination, but is now its own protected class. Indigenous identity means being First Nations, Metis or Inuit, and the Code draws upon the Charter and the United Nations Declaration of Indigenous Peoples in determining its definition.
As an employer, you must not discriminate against an employee on the basis of political beliefs, affiliations or participation, subject to a bona fide reason. Political belief may include support of a political party or group that advocates for political change, or beliefs about the organization and governance of communities. It may also include advocacy for a change to legislation.
The prohibition of discrimination on the basis of religion encompasses religious practices such as prayer, dietary and clothing requirements and religious holy days. In general, an employee should be free to abide by legitimate faith-based rules or tenets, or the mandated practices of any given religion, without detrimental repercussions in the workplace. The prohibition of discrimination on the basis of religion is intended to limit circumstances where employees are forced to choose between their religious obligations and their employment.
MARITAL OR FAMILY STATUS
Marital status includes relationships with a “spousal-like” quality. The protection from discrimination extends to spouse-like relationships, regardless of whether or not the claimant is actually married, single, divorced, widowed, separated, or living common law. The Code also prohibits discrimination on the basis of one’s relationship with a particular person.
Family status typically refers to parent-child relationships, but may also extend to other familial connections. In some circumstances, one’s relationships or connections between siblings, in-laws, uncles or aunts, brothers and sisters, nephews and nieces, and cousins may fall within the family-status ground. The Code also prohibits discrimination on the basis of one’s familial relation to a particular person.
For obvious reasons, family and marital status issues often overlap and are commonly cited together in discrimination complaints in order to better illustrate the nature of the complaint.
PHYSICAL OR MENTAL DISABILITY
Disability, as a protected ground under the Code, is not defined in the legislation, nor are any specific disabilities named in the statute. This allows for a very broad and open-ended interpretation.
A disability can be a real or perceived mental or physical disability, whether visible or non-visible, permanent or temporary. Disability can include all major diseases and illnesses, including:
- cerebral palsy
- heart attack and heart conditions
- HIV and AIDS
- drug and/or alcohol dependencies
- developmental delay & learning disabilities
- mental illness
Disability does not include short-lived conditions such as a cold.
For more information concerning disability as a protected ground of discrimination, read Human Rights in British Columbia: Disability Discrimination
SEX AND SEXUAL ORIENTATION AND GENDER IDENTITY OR EXPRESSION
The protection from sex discrimination includes protection for males and females, protection against sexual harassment, and protection against pregnancy discrimination. In July 2016, the Code was amended to include “gender identity or expression” among the protected grounds covered by the Code. Prior to the change, transgender individuals were protected under the ground of “sex”, as interpreted by the BC Human Rights Tribunal and the courts. Protection from discrimination on the basis of sexual orientation includes protection for gay men, lesbians, bisexuals, and heterosexuals.
Gender identity is defined as a person’s sense of their own gender including man, woman, transgender, and non-binary. For some, this gender identity is fixed, while for others it is fluid.
Gender expression is about how a person presents their gender to others, including how they act or appear, or portray themselves. A person’s gender expression may not necessarily reflect their gender identity. Gender expression may include someone’s preferred name or pronouns.
For more information concerning these protected grounds of discrimination, read Human Rights in British Columbia: Discrimination Based on Sexual Orientation and Human Rights in British Columbia: Sex Discrimination and Sexual Harassment
Prior to January 1, 2008, age was defined in the HRC 19 years of age but less than 65 years of age. That definition has since been amended to “an age of 19 years or more” to extend protection from age discrimination to people 65 years and older. The effect of this change is to provide employees with the choice of whether to continue working past age 65 and to allow claims of discrimination in employment if employees are required to retire at age 65. However, anyone age 19 years or more is protected from age discrimination in employment, whether based on a generalized assumption (e.g. that someone is “too old” or “too young” for a job) or on an individual’s actual age or membership in a particular age group.
For more information concerning on age as protected ground of discrimination, read Human Rights in British Columbia: Age Discrimination.
CRIMINAL OR SUMMARY CONVICTION
As an employer, you are prohibited from discriminating against anyone who has been convicted of a criminal or summary conviction offence unrelated to the employment or the intended employment of that person. This protection also extends to “perceived convictions,” where a person has been arrested but not convicted.
If you decide not to hire based on an individual’s conviction, you must demonstrate a degree of “relatedness” between the conviction and the work to be performed. You must consider the circumstances of the conviction, including the details of the offence, the length of time intervening between the conviction and the employment decision, the employment history of the individual concerned, his/her age at the time of the offence and his/her efforts at rehabilitation.
Human rights adjudicators will evaluate the legitimacy of an employer’s decision by asking the following questions:
- Does the behaviour for which the charge was laid, if repeated, pose any threat to the employers’ ability to carry on its business safely and efficiently?
- What were the circumstances of the charge and the particulars of the offence involved?
- How much time has elapsed between the charge and the employment decision?
- What has the individual done during that period of time?
- Has the individual shown any tendencies to repeat the kind of behaviour for which he or she was charged?
- Has the individual shown a firm intention to achieve rehabilitation?
For more information regarding an employer’s obligations under the Human Rights Code, see our articles on family status discrimination; the duty to accommodate generally, and in relation to disability and religious beliefs in particular; and addiction as a disability.
Information provided by Ryan Anderson and Natasha Jategaonkar, employment lawyers, and Jakob Sanderson, articling student, with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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