Human Rights and Discrimination Protection (Script 236)

From Clicklaw Wikibooks

BC’s Human Rights Code prohibits some types of discrimination, and the BC Human Rights Tribunal handles discrimination complaints. This script explains what types of discrimination the Code prohibits, how to complain to the Tribunal, and what the Tribunal does with complaints. Also, check the following scripts for more information:

  • 270, called “Protection Against Job Discrimination”
  • 271, called “Sexual Harassment”
  • 230, called “Charter of Rights and Freedoms: Overview”

This script does not deal with:

  • The Canadian Human Rights Act, which covers businesses and activities regulated by federal law. These include banks, airlines and airports, phone companies, and the federal government. If your case involves federal law, contact the Canadian Human Rights Commission or phone 1.888.214.1090. If you don’t know whether to contact the BC Tribunal or the federal Commission, contact either of them—they can guide you. The Tribunal is at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC.
  • Municipal laws, which may also prohibit some types of discrimination—contact your city hall for information on them.

What types of discrimination does the BC Human Rights Code prohibit?

The Code prohibits discrimination based on any of the following 16 protected characteristics, called prohibited grounds of discrimination:

  • race
  • colour
  • ancestry
  • place of origin
  • political belief—this applies only to employment, employment ads, and membership in a union or occupational association
  • religion
  • marital status
  • family status—this does not apply to the purchase of property
  • physical disability, including HIV and AIDS
  • mental disability
  • sex
  • sexual orientation
  • gender identity and gender expression
  • age (if you’re 19 and above)—this does not apply to the purchase of property
  • criminal or summary convictions unrelated to employment or membership—this applies only to employment, and membership in a union or occupational association
  • lawful source of income (this applies only to tenancies)

The Code also prohibits retaliation, which means taking action against a person who:

  • complained, or might complain, to the Tribunal
  • was named (or might be named) in a complaint
  • was, or might be, a witness, or
  • helped, or might help, someone with a complaint

The Code prohibits discrimination in the following 8 protected areas:

  • employment—section 13
  • tenancy premises (renting property)—section 10
  • accommodation, service, and a facility made available to the public—section 8
  • publications—section 7
  • purchase of property (including commercial and residential property, bare land, and leases)—section 9
  • employment ads—section 11
  • wages—section 12 (this is about wage differences based on sex)
  • membership in unions and occupational associations—section 14

Not all 16 grounds apply to all 8 areas, as shown in this chart of protected grounds and protected areas produced by the BC Human Rights Clinic. Some of the exceptions are explained more below.

Human rights cases often involve employment, tenancy, services, and publications—here are some details on them:

1. Employment—section 13

Everyone has a right to be free from discrimination in their employment. This includes hiring, firing, wages, benefits, hours and other terms and conditions of work. It also includes the workplace environment. Treating someone badly based on one of the grounds in section 13 of the Code is prohibited. Employers must provide a discrimination-free workplace, and they may be liable for discrimination, including harassment, by their employees.

For more on harassment in the workplace, see Script 271.

Employers must also accommodate employees to ensure they are treated fairly. Employers must take all reasonable steps to avoid a negative effect on an employee based on a protected characteristic. For example, a job requirement to work on a certain day may hurt someone whose religion prevents them from working on that day. Or, a person with a disability may not be able to perform a certain part of their job because of their disability. In these cases, the employer must accommodate the employee to the point of undue hardship. This means they must take reasonable steps to remove the harm and support the employee to do the job.

Many human rights cases involve complaints that an employer has not accommodated an employee’s disability. The Code does not define disability, but cases have said that it is involuntary, is somewhat permanent, and impairs a person's ability to carry out the normal functions of life.

Accommodation requires an employer and an employee (and an employee’s union, if they are in one) to find a practical solution to accommodate the employee’s disability but not create an undue hardship on the employer. An employer may have to accept some hardship. That hardship might involve expense, inconvenience, or disruption—as long as it does not unduly interfere with the business.

Employers may be able to justify discrimination if it is based on a bona fide occupational requirement. For example, a pilot must have 20-20 vision.

Script 270 has more on employment discrimination.

2. Tenancy premises (renting property)—section 10

No person, including property owners, landlords, or building managers, can refuse to rent a space (for example, an office or an apartment) or charge a higher rent or security deposit, evict someone, or otherwise discriminate against a tenant (or prospective tenant) based on the grounds in section 10 of the Code. Discrimination in tenancy includes discrimination relating to the use of common spaces, provision of repairs, and other terms and conditions of the tenancy. Harassment of a tenant based on a protected ground is also prohibited.

The following exceptions apply:

  • a person looking for a roommate to share their own place can restrict the rental to people based on any ground—if they will be sharing a bathroom or kitchen
  • rental buildings can be restricted to people over 55—or couples or families with one member over 55
  • rentals may also be restricted to people with mental or physical disabilities—if the residence is designed for people with disabilities—in some cases

3. Accommodations, services, and facilities—section 8

Restaurants, hotels, shops, and other service providers that offer services to the public can’t refuse service, charge higher rates, or discriminate in any other way based on the protected characteristics in section 8 of the Code. Governments and educational institutions also cannot discriminate in providing accommodations, services, and facilities. Service providers must take all reasonable and practical steps to accommodate someone’s personal characteristics if necessary to provide equal benefit of the service. But the Code does allow:

  • public facilities to be restricted by sex (washrooms, change rooms). But case law may change this.
  • insurance companies to distinguish based on sex and mental and physical disability by charging different premiums and paying different benefits.

4. Publications—section 7

The Code prohibits publications that indicate discrimination or an intention to discriminate, or that would expose a person or group to hatred. But the Code does not prohibit publications that express offensive or hurtful ideas.

Exceptions and special programs under the Human Rights Code

Charitable, philanthropic, religious, educational, and other non-profit organizations and corporations may be able to give a preference to certain people. The organization's primary purpose must be to promote the interests and welfare of a group of persons identified by a physical or mental disability, or a common race, religion, age, sex, sexual orientation, gender identify or expression, marital status, political belief, colour, ancestry, or place of origin.

In addition, organizations can ask the Tribunal to approve a specific program or activity as a Special Program under the Code. The purpose of the program or activity must be to improve conditions for a person or group disadvantaged because of race, colour, ancestry, place of origin, physical or mental disability, sex, sexual orientation, or gender identity or expression. For example, in the past the Tribunal approved a school district hiring a member of a protected group to provide services to students and families who are members of that same group.

Duty to accommodate

The Code prohibits acts or omissions that have a discriminatory effect. Protecting human rights may require an employer, landlord, or service provider to take reasonable steps to remove the discriminatory effect, to the best of their ability. This is called the duty to accommodate to the point of undue hardship. For example, a restaurant or apartment building may have to provide a ramp for people who use wheelchairs. This may cause them some hardship because they must spend money to build the ramp. Hardship becomes undue if it would be unfair to expect them to take action, given their size, profits, or other factors.

What undue hardship is, however, can vary from case to case. If you think it may apply to you, see a lawyer.

The Code does not define disability, but cases have determined that a disability generally indicates a state that is involuntary, has some degree of permanence, and impairs the person's ability, in some way, to carry out the normal functions of life.

The duty to accommodate requires all the parties take part in a process to try to accommodate, even if they eventually cannot find a way to do so. Failure to take part in the process can violate the Code. A person requesting accommodation is entitled only to reasonable—not perfect—accommodation. Both parties may have to compromise.

Also, a request for accommodation may need medical evidence to support it.

What can you do if someone discriminates against you?

Get a complaint form from the Human Rights Tribunal, fill it in, and file it with the Tribunal within 6 months of when the discrimination happened. For example, if the discrimination happened on July 30, 2015, you must file the complaint by January 30, 2016. If you wait more than 6 months to file your complaint, you must explain on the form why you are filing late. The Tribunal may accept a late complaint if it is in the public interest to accept it and the delay won’t be unfair to anyone.

You can get a complaint form from the Tribunal website, the Tribunal office, and government agents. You can file a complaint in person, by mail, fax, courier, or email.

The Tribunal has information sheets on the Code, the complaint process, and many other topics. To get this material, see the Tribunal website or call 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC.

What is the Human Rights Tribunal?

The Tribunal is the organization that deals with complaints under the Code. It operates like a court but is less formal. It has staff and members who help people solve complaints without going to a hearing. If that’s not possible, they hold hearings into complaints. Members are experts in human rights law who are appointed by the BC government. Tribunal hearings are normally public.

Do you need help filing a complaint?

The BC Human Rights Clinic may be able to help you file a complaint with the Tribunal and help you at a hearing. The clinic is operated by the Community Legal Assistance Society. In addition, an onsite consultation service is offered every Monday between 9:30 am and 3:30 pm at the Tribunal's offices in Vancouver. For details, see the BC Human Rights Clinic website or call 604.689.8474 in Vancouver and 1.877.689.8474 elsewhere in BC.

What happens when you file a complaint?

The Tribunal can handle complaints only if the Code covers them. It also considers if what happened could violate the Code. So it is important to give all the information that supports your complaint.

If the Tribunal decides it can handle your complaint, it will notify the person or business you complained about, called the respondent. You and the respondent can try to resolve the complaint at mediation. If that doesn’t work, the respondent must reply to your complaint. The respondent can also ask the Tribunal to dismiss your complaint without a hearing. If you don’t settle your complaint and it’s not dismissed without a hearing, the Tribunal will hold a hearing. A Tribunal member will decide if the complaint is justified, and if it is, the Tribunal will order a remedy. The Tribunal will give you a written decision.

What remedies can the Tribunal order?

Remedies are designed to reverse the effects of discrimination, not to punish the person or business that discriminated. They can include an order that the person or business that discriminated must do any of the following:

  • stop discriminating
  • make available the right, opportunity, or privilege that you didn’t get because of the discrimination (for example, give you your job back, or the right to compete for a job)
  • pay you money for lost wages, benefits, or expenses
  • the Tribunal can also order the person or business that discriminated to pay you for injury to your dignity, feelings, and self-respect. There are no limits to the amount of this type of award, but the average is around $5,000.

What if you disagree with the Tribunal’s decision?

You can ask the Tribunal to reconsider its decision. But it will do so only rarely. You must show that fairness and justice require a reconsideration. The Tribunal website explains what factors it will consider and gives examples of when it will and won’t reconsider its decision.

You can apply to the BC Supreme Court for judicial review of the Tribunal’s decision. That can be complicated, and you probably need legal help to do so.

What else can you do?

Talk to a lawyer about all your legal options. For the name of a lawyer, call Lawyer Referral at 604.687.3221 in the lower mainland and 1.800.663.1919 elsewhere in BC.

If the discrimination is at your place of work and you belong to a union, the union may be able to help you. As well, the Employment Standards Act may cover your case and you may have a wrongful dismissal claim—check scripts 270, 280, and 241 for more details. The BC government also has information on human rights protection.

Are there time limits for filing a complaint and suing?

Yes, there are time limits in both cases. You have 6 months from when the discrimination occurs to file a complaint with the Tribunal. If you wait longer than 6 months, the Tribunal may still accept your complaint, but you will have to explain why you delayed.

There are also time limits for suing in court—you need legal advice about that.

If you complain to the Tribunal and also file a complaint (grievance) with a union, or if you sue the employer for wrongful dismissal, the Tribunal can wait to deal with your complaint until your other matter is finished if it will deal with the discrimination.

[updated February 2018]

The above was last reviewed for accuracy and edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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