Human rights and duties in employment - BC Human Rights Tribunal

Human rights and duties

Employment

Last updated: May 21, 2024

Page contents

Overview
What do I need to show to make a discrimination complaint about employment?
Who can be named as a respondent in an employment complaint?
How can an employer or other person justify their conduct regarding employment? (Defences)

Overview

The Human Rights Code forbids discrimination in employment.

See video in American Sign Language about protection in employment

Discrimination is a negative effect regarding employment that is based on a ground of discrimination. A ground of discrimination is a personal characteristic protected under the Human Rights Code.

Employers and others have a duty not to discriminate regarding employment. This includes a duty to take all reasonable steps to avoid a negative effect based on a ground of discrimination. This is called the duty to accommodate.

Employers and others may have a defence under the Human Rights Code. If the employer or other person justifies their conduct, then there is no discrimination.

Are you a member of a union, employers’ organization, or occupational association? If so, these organizations also have a duty not to discriminate in membership.

Learn more:

What do I need to show to make a discrimination complaint about employment?

A complaint must set out facts that, if proved, could be discrimination under the Human Rights Code against each person named as a respondent.

This means that a complaint must include information showing:

Grounds of discrimination / Personal characteristics
Negative effect
Connection between negative effect and personal characteristics

1. Grounds of discrimination / personal characteristics

The complainant must have a personal characteristic protected under the Human Rights Code. The personal characteristic is also called the “ground of discrimination”.

A person is protected if they have the personal characteristic or if they are seen to have one. For example, the ground of disability applies if someone has a disability, or the respondent thinks that they have a disability.

The personal characteristics protected in employment are:

2. Negative effect

The respondent’s conduct must have a negative effect on the complainant regarding employment. A negative effect is also called an “adverse impact”.

A negative effect regarding employment can include:

Refusing to hire
Denying a promotion
Discipline
Denying benefits
Refusing to return someone to work
Harassment based on a personal characteristic that negatively affects the work environment or leads to negative job-related consequences
Ending employment

A negative effect can arise even if someone is treated the same as others.

For example:

A job requirement to work a specific day could negatively affect a person whose religious belief requires that they do not work on that day.

An employer fires a person who is unable to perform part of their job due to a disability.

Note:

You should tell your employer if you cannot meet a work requirement because of a personal characteristic. There is a duty to accommodate to avoid a negative effect based on a personal characteristic.

If your employer does not know you need accommodation, they may have a defence to a complaint of discrimination.

3. Connection between negative effect and personal characteristics

A negative effect is discrimination only if it is connected to a personal characteristic. This means that a personal characteristic must be at least a factor in the negative effect. It does not need to be the only factor or the most important factor.

A complaint may show a connection in different ways. For example:

Information showing the respondent considered the personal characteristic. However, a complainant does not need to show that the respondent meant to discriminate or was motivated by discrimination.
Information showing an employment rule affected the complainant based on their personal characteristic.
Information showing an employment rule affects a group of employees more than others based on their personal characteristic.

Someone may believe that a personal characteristic was a factor in a negative effect, but a complaint must set out facts supporting the belief.

Examples:

The employer offered the job to someone who is 25. I am 60 and as qualified for the job.
My employer got rid of my position. I am the only person of colour at work.
My employer fired me one week after they learned I was pregnant.
My employer fired me when I took disability leave.
My employer disciplined me for conduct caused by the disability.
My employer disciplined me more harshly than non-Indigenous employees for similar conduct.
My employer fired me. I am Black and my manager has used slurs about Black people. (Set out words used and when.)
My employer promoted a white male colleague got a promotion. I am at least as qualified. I am an Asian woman.
My employer said I must work Saturdays. My religion does not allow me to work Saturdays.

Who can be named as a respondent in an employment complaint?

The employer. The employer is responsible for the workplace and is usually the respondent in an employment complaint.
An employment agency. An employment agency is responsible if they refuse to refer a person for employment.
A union. A union may be named if the complaint alleges discrimination in the collective agreement or that the union impeded an employer’s accommodation efforts.
Another person who is responsible for the discrimination. For example, a person could be named if they:
- made the decision to fire the complainant based on a personal characteristic
- influenced a decision that discriminated against the complainant
- harassed the complainant

A person who applied a discriminatory policy as part of their job, or who delivered a letter firing the complainant would not normally be named.

How can an employer or other person justify their conduct regarding employment? (Defences)

There is one main defence to discrimination in employment. That is where the respondent proves their conduct was justified. There are also some specific defences.

Justification defence (bona fide occupational requirement)
Defence if criminal charge or conviction is related to the employment
Defence for bona fide seniority scheme
Defence for bona fide retirement, superannuation, pension plans, or group or employee insurance plans

There is also an exemption for non-profit organizations and for special programs, including employment equity programs.

Justification defence: bona fide occupational requirement (BFOR)

If the complainant proves that the respondent’s conduct had a negative effect on them regarding their employment, and that a personal characteristic was a factor in the negative effect, they have proved their case. This is called a “prima facie case of discrimination”.

Even if a complainant proves their case, a respondent may argue that there is no discrimination because its conduct was justified (i.e., based on a bona fide occupational requirement or BFOR).

To succeed with this defence, a respondent must prove three things:

1. There is a legitimate job-related purpose for the respondent’s conduct

In some cases, a respondent’s conduct involves a defined standard or requirement that affects the complainant, such as a requirement about working hours.

The respondent must identify the (non-discriminatory) purpose for the standard or conduct in question.

For example, an employer’s standard or conduct may be to ensure the safe or efficient performance of the job.

The respondent must also show how that purpose relates to the requirements of the job.

In many cases, the complainant may not dispute that the respondent’s conduct was based on a legitimate, job-related purpose.

2. The respondent adopted the standard or acted in good faith, believing the standard or conduct is necessary to achieving the purpose

This means that the respondent adopted the standard or acted to accomplish its job-related purpose and did not mean to discriminate. In many cases, the complainant may not dispute that the respondent acted in good faith with no intent to discriminate.

3. The respondent’s standard or conduct is reasonably necessary to the purpose, such that the respondent could not accommodate the complainant (or others sharing their characteristics) without undue hardship

This means that the respondent fulfilled its duty to accommodate. To do so, the respondent must prove that it took all reasonable and practical steps to avoid the negative effect. This includes proving:

What the respondent did to explore options to find a reasonable result
Why further steps were not reasonable or practical (would result in undue hardship)
The respondent’s basis for concluding that it could not accommodate the complainant without giving up the legitimate job-related purpose or incurring undue hardship

Proof that a respondent reasonably accommodated a complainant’s disability may also require the respondent to show that it took any necessary steps to inform itself of the nature of the complainant’s medical condition, prognosis, and capabilities (including limitations or restrictions) for work.

It is not enough to point to some hardship and say no more could be done. A respondent must prove undue hardship by giving evidence about the effect that the accommodation would have on the respondent.

For example, if a respondent relies on excessive cost, it must prove both the cost of the requested accommodation, and how this cost would result in undue hardship to it given its financial situation. It is not enough to rely on the high cost of accommodation without showing that the respondent cannot reasonably afford it.

Factors an employer may rely on to establish undue hardship include:

Financial cost
Morale of other employees
Interchangeability of the work force and facilities
Size of the employer’s operation

A complainant must participate in the search for accommodation.

The respondent may succeed if it proves that the complainant did not request accommodation and it did not reasonably know that the complainant may need accommodation. Note: When an employer is aware, or reasonably ought to be aware, that there may be a relationship between a negative effect and a personal characteristic, the employer has a duty to inquire into whether the person needs accommodation.

For example, if the employer is aware that there may be a relationship between an employee’s conduct and a personal characteristic, the employer must inquire into that possible relationship before disciplining the employee.

The respondent may also succeed if it proves that it was taking all reasonable and practical steps, but the process failed because the complainant did not reasonably participate, or that it offered reasonable accommodation, but the complainant rejected the offer.

Defence if criminal charge or conviction is related to the employment

If a complainant’s criminal charge or conviction was a factor in the negative effect, it is a defence if the criminal conviction was related to the employment. The Tribunal will consider all the circumstances of the case, including:

Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer’s ability to carry on its business safely and efficiently?
What were the circumstances of the charge and the details of the offence involved? (For example, how old was the complainant when the events in question occurred, and were there any extenuating circumstances?)
How much time has passed between the charge and the employment decision?
What has the complainant done during that time? Has the complainant shown any tendencies to repeat the same kind of behaviour? Has the complainant shown a firm intention to rehabilitate themself?

Defence for bona fide seniority scheme

A bona fide seniority scheme is a defence on the ground of age. For example, a seniority scheme may provide that less senior employees will be laid off before more senior employees. This will tend to affect younger workers. This is not age discrimination if the scheme was developed and applied in good faith (that is, without meaning to discriminate).

Defence for bona fide retirement, superannuation, pension plans, or group or employee insurance plans

This defence applies to the grounds of sex, age, marital status, and physical or mental disability. The Code allows employers and insurance companies to make distinctions that would otherwise be discriminatory so long as the plan is bona fide (made honestly and without meaning to discriminate).