BC Human Rights Tribunal

Leading cases: Employment

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Page contents

• Section 13
• The meaning of “employment”
• Who can be named as a respondent in an employment complaint
• When can a union be named as a respondent in an employment discrimination complaint
• When does an employer have a duty to inquire before taking steps that negatively affect an employee
• The test for a “bona fide occupational requirement” in s. 13(4)
• The test for bona fide plans in s. 13(3)(b)

Section 13

Discrimination in employment

(1) A person must not

(a)refuse to employ or refuse to continue to employ a person, or

(b)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.

(2) An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).

(3) Subsection (1) does not apply

(a) as it relates to age, to a bona fide scheme based on seniority, or

(b) as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer.

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

The meaning of “employment”

McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39. A partner in a law firm had to retire at age 65. He said this was age discrimination in employment. The court said that he was not in an employment relationship with the law firm. The court set out the test for deciding who is in an employment relationship: Who is responsible for working conditions and pay? The test looks at how much say the worker has about working conditions and pay. Mr. McCormick was not an employee because the law firm did not control the important decisions affecting his workplace.

Nixon v. Vancouver Rape Relief Society, 2002 BCHRT 1. A volunteer may be an employee. The Tribunal will consider the following:

• Is there a formal process to recruit volunteers?
• Is there a training process with defined tasks?
• Do volunteers have to agree to follow the organization’s policies and practices?
• Are there requirements about when or how much a volunteer must be available?
• What is the role of volunteers in the organization?

In this case, the Tribunal found that the society employed its volunteers. Note, the BC Court of Appeal set aside this decision for other reasons: Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601.

Who can be named as a respondent in an employment complaint

Any person who is alleged to be responsible for the discrimination can be named as a respondent.

Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84, 1987 CanLII 73. Employers are liable for the discriminatory acts of their employees if the acts are related or associated with the employment.

Fougere v. Rallis and Kalamata Greek Taverna, 2003 BCHRT 23. A person who influences a discriminatory decision may be responsible for the discrimination.

Duong v. CIBC Wood Gundy and others, 2006 BCHRT 194. A person who is the “directing mind” behind a discriminatory decision may be responsible for the discrimination.

British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62. Any person can be named as a respondent in an employment complaint if the complaint alleges that they discriminated against the complainant regarding the complainant’s employment. This can include co-workers and others who are not in a position of authority. There must be a sufficient nexus between the conduct and the employment context. This will depend on all relevant circumstances. Factors that may be relevant include:

1. whether the respondent was integral to the complainant’s workplace;
2. whether the impugned conduct occurred in the complainant’s workplace; and
3. whether the complainant’s work performance or work environment was negatively affected.

When can a union be named as a respondent in an employment discrimination complaint

Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970. A union can be a party to an employment discrimination complaint in two situations:

• The union helps to make a work rule that discriminates. For example, a provision in a collective agreement discriminates.
• The union blocks an employer’s efforts to accommodate an employee.

When does an employer have a duty to inquire before taking steps that negatively affect an employee

Willems-Wilson v. Allbright Drycleaners, 1997 BCHRT 39. The employer fired the complainant because of her behaviour. Her behaviour was related to a mental disability. The complainant did not tell her employer that she had depression, but her employer had never seen an employee crying so much. He knew that she went to counselling every week. He knew that she was hospitalized for emotional problems. In this situation, the employer had a duty to make some inquires. He should have looked into whether her behaviour was related to a disability before he fired her.

The test for a “bona fide occupational requirement” in s. 13(4)

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3. This case is usually called “Meiorin”. The employer set a physical fitness standard for forest firefighters. Ms. Meorin failed the test. The standard had a negative effect based on sex because of physical differences between men and women. The standard was discriminatory unless the employer could prove a bona fide and reasonable justification [BFOR]. The Court set out the test for proving a BFOR:

(1)    The employer adopted the standard for a purpose rationally connected to the performance of the job.
(2)    The employer adopted the standard in an honest and good faith belief that it was necessary to fulfil a legitimate work-related purpose.
(3)    The standard is reasonably necessary to fulfill its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing undue hardship.

In this case, the employer proved the first two parts of the test:

• The employer chose the fitness standard to find employees who can do the job safely and well. There is a logical connection between fitness and a firefighter’s job.
• The employer acted honestly when it chose the standard. It believed the standard was needed to find employees who could do the job safely and well. It did not mean to discriminate based on sex.

The employer did not prove the third part of the test. The employer did not prove that the standard was reasonably needed to meet its goal. It did not prove that it would face undue hardship if it used a different standard.
Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43. An employee had disabilities. She missed 960 days of work over about eight years. Her employer fired her when she had been off work for about five months and was off work indefinitely. The court said that an employer must plan an employee’s workplace or duties to allow the employee to do their work, if it can do so without undue hardship. The employer will prove undue hardship if further accommodation would unreasonably interfere with running the business. The employer will also prove undue hardship if the employee cannot work for the reasonably foreseeable future even though the employer has tried to accommodate them. The test looks at the whole situation, including whether there were past absences.

The test for bona fide plans in s. 13(3)(b)

New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45. Section 13(1) of the Human Rights Code forbids discrimination in employment. But, section 13(3)(b) says that section 13(1) does not apply to the operation of certain “bona fide” plans based on marital status, physical or mental disability, sex or age. The plans are:

• Retirement, superannuation or pension plans
• Group or employee insurance plans

The test for a bona fide pension plan is whether it is a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights. The test looks at the plan overall, not the details of how the plan works.
In this case, a pension plan required employees to retire at age 65. It was a bona fide plan, so there was no age discrimination.
The Tribunal has applied this case to:

• benefits under pension plans: Duncan v. Trustees: Retail Wholesale Union Pension Plan, 2016 BCHRT 22
• disability insurance benefits under a “disability plan”: Johnston obo others v. City of Vancouver (No. 2), 2015 BCHRT 90