February 15, 2017
Because the Human Rights Code (HRC) applies to most employers in BC workplaces, you should know your rights and responsibilities — as well as those of your employees.
Each province, the federal government and the territories of Canada have enacted legislation aimed at protecting human rights and prohibiting discrimination, based on certain enumerated grounds. View the HRC for more detail on specific provisions.
The stated purposes of the Code are as follows:
- to foster a society in which there are no impediments to full and free participation in economic, social, political and cultural life of British Columbia;
- to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
- to prevent discrimination prohibited by the Code;
- to identify and eliminate persistent patterns of inequality associated with discrimination contrary to the Code;
- to provide a means of redress for those persons who are discriminated against contrary to the Code.
The Code also establishes the BC Human Rights Tribunal, an independent, quasi-judicial body, responsible for accepting, screening, mediating and adjudicating human rights complaints. The Tribunal operates much like a court but is less formal and more flexible.
On November 27, 2018, the Human Rights Code Amendment Act, 2018 (the “Act”), received Royal Assent. The Act introduced several amendments, including initiating the process of re-establishing the British Columbia Human Rights Commission (BCHRC).
The following amendments are currently in force as a result of the Act:
- The office of the Human Rights Commissioner has been created and given powers;
- The Commissioner has the right to intervene in a complaint;
- The period in which a complainant may bring a complaint has changed from six months to one year;
- Responsibility for special programs has shifted to the Commissioner;
- The Commissioner has the power to initiate inquiries;
- The Commissioner has the power to obtain copies of complaints and responses;
- The Legislative Assembly is able to refer a matter to the Commissioner.
In 2021, Indigenous identity was added as a prohibited ground of discrimination, as part of British Columbia’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples.
THE PROHIBITED GROUNDS OF DISCRIMINATION
A common misconception concerning human rights legislation is that it prohibits all discrimination. However, employers legally discriminate every day. For example, each time an employer promotes one employee over another, there has been discrimination based on various legitimate criteria, such as ability, experience, qualifications and attitude. Differentiating between individuals on the basis of such criteria is both justifiable and a necessary part of operating a business.
The HRC is only concerned about the prohibited grounds of discrimination. In this respect, the Code prohibits employers from refusing to employ or refusing to continue to employ a person, or discriminating against a person regarding employment or any term or condition of employment, because of a person’s:
- Indigenous identity
- place of origin
- political belief
- marital status
- family status
- physical or mental disability
- sexual orientation
- gender identity or expression
- criminal or summary conviction offence unrelated to the employment or intended employment of that person
In other words, an employer is prohibited from making employment-related decisions based in whole or in part on any of these proscribed grounds.
Most of these prohibited grounds of discrimination are not defined in the Code (with the exception of age, which means 19 and over, and Indigenous identity means First Nations, Inuit or Metis), however, they are interpreted very liberally. These are the only grounds of discrimination prohibited by the Code.
HUMAN RIGHTS IN THE EMPLOYMENT CONTEXT
Sections 11 and 12 of the Code specifically prohibit discrimination in employment advertisements and wages. However, Section 13 is much broader and generally prohibits discrimination in any aspect of the employment relationship. This includes:
- recruitment and selection
- compensation and benefits
- hours of work
- performance management
- leaves of absence
Note that this list is not exhaustive; any employment-related decision may be subject to scrutiny if it is based on a prohibited ground.
Also note that the HRC applies to full-time and part-time employees, probationary employees, contractors, seasonal workers, temporary workers, and volunteers.
EXCEPTIONS TO THE PROHIBITED GROUNDS
As an employer, you may lawfully discriminate, based on an otherwise prohibited ground, if you can prove legitimate business reasons. However, in order to prove the legitimacy of such business reasons, you must be able to demonstrate that the workplace rule, policy, standard or criteria relied upon is a “bona fide occupational requirement.”
Read Bona Fide Occupational Requirements for further information.
The BC Human Rights Tribunal has published a number of guides and information sheets on its website that explain the Tribunal’s process. In addition, Tribunal staff at the Vancouver office is also available to assist employers and employees with compliance issues, interpreting the HRC, resolving complaints and preventing complaints altogether. You may contact Tribunal staff by phone (604-775-2000) or by email. Another excellent resource is the BC Human Rights Clinic.
Information provided by Ryan Anderson and Natasha Jategaonkar, employment lawyers 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.