BC Human Rights Tribunal

Everyone has the right to be free from discrimination based on protected characteristics regarding membership in a trade union, employers’ organization or occupational association.

This means that unions and associations have a duty not to discriminate regarding membership. This includes a duty to take all reasonable steps to avoid a negative effect based on a personal characteristic. This is called the “duty to accommodate”.

Unions and associations are also prohibited from discriminating in other areas of the Code.

For example, if a complaint is about a collective agreement or a union impeding an employer’s efforts to accommodate someone, the area of human rights and duties in employment applies.

If a complaint is about a service provided by an association (other than membership services), the area of human rights in services applies.

What poor treatment is discrimination regarding membership in a union or association

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

This means that a complaint must include information showing:

• The complainant has a personal characteristic (or is perceived to have a characteristic) protected under the Code.
• The respondent’s conduct had a negative effect on the complainant regarding membership in a union or association.
• The personal characteristic is a factor in the adverse impact

The personal characteristics protected in a union or association are:

• Indigenous identity
• Race
• Colour
• Ancestry
• Place of origin
• Sex
• Gender identity or expression
• Sexual orientation
• Physical disability
• Mental disability
• Marital status
• Family status
• Age
• Political belief
• Religion
• Summary or criminal conviction

Negative effect regarding membership

The conduct must have a negative effect on the complainant’s membership in the union or association.

Example: Membership is denied or the member is suspended or expelled.

Harassment based on a personal characteristic that negatively affects a person’s membership is prohibited.

A negative effect can arise where a person is treated the same as others, but this has a negative effect on them.

Example: A person with a disability is unable to meet an expectation of membership due to a disability

A union or association has a duty to accommodate the member to avoid a negative effect based on a personal characteristic.

For there to be discrimination in this kind of situation, the respondent must reasonably be aware that the complainant needs accommodation.

Example: The complainant told the respondent they need accommodation or it is clear that the complainant needs accommodation.

Connection between negative effect and personal characteristic

Poor treatment 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 complainant does not need to show that the respondent meant to discriminate or was motivated by discrimination.

A person may believe that a personal characteristic was a factor, but a complaint must set out facts supporting the belief. Examples:

The respondent identifies the personal characteristic.

For example: A member of an association’s executive uses insults based on a personal characteristic, or gives the characteristic as a reason for the poor treatment

The respondent’s actions affect the complainant because of a personal characteristic.

For example: The complainant is expelled due to a rule that applies because of their disability.

Note: this is enough to file a complaint. However, if the respondent justifies its action by showing that it acted in good faith and took all reasonable and practical steps to avoid the negative effect, then there is no discrimination.

The circumstances show the personal characteristic is a factor. The facts support a “reasonable inference”.

For example: The complainant is disciplined for conduct that others who do not share the personal characteristic are not disciplined for.

Note: This is enough to file a complaint. However, the respondent may have an explanation. At a hearing, the complainant must prove the ground was a factor in the adverse impact.

A union is not required to support its members on all grievances against employers. If a union decides, for reasons unrelated to the personal characteristics, that it will not support an employee’s grievance, then the member does not have a basis for a complaint under the Human Rights Code. You may have a complaint to the BC Labour Relations Code under section 12 of the Labour Relations Code.

Who can be named as a respondent in a complaint about membership in a union or association

Only the union or association can be a respondent under s. 14 of the Code.

How can poor treatment regarding membership be justified (defences)

There is one main defence to discrimination regarding membership in a union or association, where the respondent proves its conduct was justified. There is also one specific defence:

• Justification defence (bona fide occupational requirement)
• Defence if criminal charge or conviction is related to the membership

Justification defence: bona fide and reasonable justification

If the complainant proves that the respondent’s conduct had negative effect on them regarding membership in the union or association, and that a personal characteristic was a factor in the negative effect, this is called a prima facie case of discrimination.

Even if a complainant proves a prima facie case of discrimination, a respondent may argue that there is no discrimination because its conduct was justified.

Section 14 of the Code does not explicitly include a justification defence, but the Tribunal has interpreted the section to allow for it.

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

1. There is a legitimate purpose for the respondent’s conduct related to its function

In some cases, a respondent’s conduct involves a defined standard or requirement that affects the complainant. The respondent must identify the (non-discriminatory) purpose for the standard or conduct in question. The respondent must also show how that purpose relates to the function of the organization.

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

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 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 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 costs 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 the respondent cannot reasonably afford it.

A complainant must participate in the search for accommodation. The respondent may establish a justification defence where it proves that it was taking all reasonable and practical steps but the process failed because the complainant did not reasonably participate or rejected a reasonable offer of accommodation.

Defence if criminal conviction is related to membership

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

• Does the behaviour for which the charge was laid, if repeated, pose any threat to the organization’s ability to fulfill its function?
• 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 membership decision?
• What has the complainant done during that period of time? Has the complainant shown any tendencies to repeat the same kind of behaviour? Has the complainant shown a firm intention to rehabilitate themself?