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Difference between revisions of "BC Human Rights Code (6:III)"
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In ''PN v. FR and another (No. 2)'', 2015 BCHRT 60, the HRT increased the damages available for cases of sexual harassment by awarding $50,000 for injury to dignity to a domestic foreign worker who was sexually harassed and assaulted. This case also involved allegations of discrimination based on family status, race, age, colour and place of origin. Please note that as of June 2015, this decision is awaiting judicial review. | In ''PN v. FR and another (No. 2)'', 2015 BCHRT 60, the HRT increased the damages available for cases of sexual harassment by awarding $50,000 for injury to dignity to a domestic foreign worker who was sexually harassed and assaulted. This case also involved allegations of discrimination based on family status, race, age, colour and place of origin. Please note that as of June 2015, this decision is awaiting judicial review. | ||
Sexual harassment can take a number of forms. One such form may occur when the employer or a supervisory employee requires another employee to submit to sexual advances as a condition of obtaining or keeping employment or employment-related benefits. It may also occur when employees are forced to work in an environment that is hostile, offensive, | Sexual harassment can take a number of forms. One such form may occur when the employer or a supervisory employee requires another employee to submit to sexual advances as a condition of obtaining or keeping employment or employment-related benefits. It may also occur when employees are forced to work in an environment that is hostile, offensive, or intimidating, such as where an employer allows pornography to be posted in the workplace. | ||
It is not generally necessary for an employee to expressly object to their harasser before filing a complaint. There is also no requirement of continuing harassment; a single incident is sufficient if serious. | |||
The test for whether sexual harassment occurred is an objective standard. It must be shown that the alleged discriminatory conduct is “reasonably perceived to create a negative psychological and emotional environment for work.” Please refer to ''Mottu v MacLeod'', 2004 BCHRT 76 at para 41 where the Tribunal found that dress code requirements based on sex could constitute discrimination on the basis of sex. The test must also take into account the customary boundaries of social interaction in the circumstances. There may not be an action if the complaint arises due to the complainant’s innate sensitivity or defensiveness. Factors that are examined to determine the limits of reasonableness in a particular context include the nature of the conduct, the workplace environment, the type of prior personal interaction, and whether a prior objection or complaint was made. It is no defence to harassment, however, to show that harassing behaviour was traditionally tolerated in a workplace. | |||
The Tribunal has also found that transgender discrimination is protected under the ground of sex. Please refer to ''Nixon v Vancouver Rape Relief Society'', 2002 BCHRT 1 (Para 3) and ''Dawson v. Vancouver Police Board (No. 2)'', 2015 BCHRT 54. | |||
''Dawson'' establishes that transgender discrimination includes misgendering of trans individuals (addressing a trans person using a pronoun, name or gender marker other than that which the trans person uses to identify themselves). It can also include the denial of trans-specific medical services. | |||
=== 11. Source of Income === | |||
In a 1994 amendment to the ''Residential Tenancy Act'', source of income was established as a protected ground of discrimination with regards to rental housing. This amendment safeguards the tenancy rights of individuals on social assistance or disability pensions, who might otherwise be denied safe housing. Enforced by the BCHRT, source of income is a protected ground only in the area of tenancy. Please refer to ''Tanner and Vlake'', 2003 BCHRT 36 at para 22-26 for further discussion. | |||
=== 12. Discrimination Based on Involvement in Human Rights Proceedings (s 43) === | |||
Besides those listed above, there is another ground of discrimination provided for by s 43 of the HRC. Under the “protection” provision it is considered a ground of discrimination to discriminate against a person because that person has made a human rights complaint, is named in a complaint, gives evidence, or otherwise assists in a complaint or human rights proceeding. This section will very soon be amended to include protection of those intending to bring a human rights complaint but who have not yet filed one. | |||
== C. The Complaint Process == | |||
The BC Human Rights Tribunal handles complaints made under the HRC. The first step in filing a complaint with the Tribunal is to fill out a Complaint Form, which are available from the Tribunal at its office address, on its website or from other local Government Agent offices. There are helpful self-help guides to filling out complaint and response forms on the Tribunal’s website. The BC Human Rights Clinic can also assist in drafting the complaint and completing the Complaint Form. See [[Governing Legislation and Resources for Human Rights (6:I) | Section I.B:Resources]]. | |||
=== 1. Who Can Lodge a Complaint === | |||
A complaint may be made by an individual victim of discrimination, one of the victims on behalf of the group or class, or by someone acting as a representative of named victim(s). If the Complaint Form is being filled out on behalf of another person or group or class of persons, the Representative Complaint Form must also be filled out and accompany the Complaint Form when sent to the Tribunal. | |||
=== 2. How to File a Complaint === | |||
The Complaint Form must be filed with the Tribunal via mail, fax or e-mail. Complainants may access the Complaint Form and other valuable resources at the BC Human Rights Tribunal website (see [[Governing Legislation and Resources for Human Rights (6:I) | Section I.B:Resources]]). If filed by e-mail, one must also send in a signed and dated copy within 21 days. The party who is filing the complaint should be aware of the time limits. There is a general six month limitation period, which may be extended in certain circumstances. See Section II.C.5.d: Limitation Period. | |||
=== 3. Review Process === | |||
Once the Complaint Form is filed, the Tribunal will review the form to determine if it fits under the HRC and if it appears to meet the six-month limitation period. If the Tribunal believes that it may not have the power to deal with the complaint in substance or it is out of time, the complainant will be given a chance to respond before the Tribunal decides whether or not to proceed with the complaint. If the Tribunal believes it can proceed, it will send the Complaint Form to the respondent for a response to the complaint. | |||
A complainant '''must''' set out a ''prima facie'' case of discrimination under the HRC on their initial complaint form. If a ''prima facie'' case is not set out then the complaint might not be accepted by the Tribunal. Even if accepted, it could still be vulnerable to an application to dismiss under s 27 of the HRC at a later stage. In order to set out a prima facie case the complainant must allege facts that, on its face, satisfy the following three elements: | |||
#They are a member of a protected group; | |||
#They suffered adverse treatment; | |||
#There is a nexus or connection between their protected status and the adverse treatment. | |||
For greater analysis of this topic please refer to ''Stone v BC (Ministry of Health) (No. 7)'', 2007 BCHRT 55 at para 99-111. | |||
=== 4. Settlement Meeting === | |||
'''Parties may agree to a settlement meeting at any time after the complaint has been filed.''' Guides for settlement meetings and hearings are available from the Tribunal at its office address or on its web site. Additionally, the BC Human Rights Clinic may be able to assist a complainant at a settlement meeting or with settlement negotiations in general. | |||
At a settlement meeting, the Tribunal can make recommendations and provide opinions as to the merits of the case, but cannot force parties to settle. Parties to the dispute may agree to voluntarily settle, in which case the complainant will file a Complaint Withdrawal Form as part of the terms of settlement. | |||
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