Human Rights and Discrimination Protection: Difference between revisions

From Clicklaw Wikibooks
Jump to navigation Jump to search
No edit summary
No edit summary
Line 2: Line 2:


{{Dial-A-Law TOC|expanded = rights}}
{{Dial-A-Law TOC|expanded = rights}}
BC’s ''[http://www.bclaws.ca/civix/document/id/complete/statreg/96210_01 Human Rights Code]'' prohibits some types of discrimination, and the [http://www.bchrt.bc.ca/ 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:
British Columbia has a law to help protect you from discrimination and harassment. Learn what it covers, and what’s involved in making a complaint that someone has discriminated against you.
*[[Protection Against Job Discrimination (Script 270)|270]], called “Protection Against Job Discrimination”
*[[Sexual Harassment (Script 271)|271]], called “Sexual Harassment”
*[[Charter of Rights and Freedoms: Overview (Script 230)|230]], called “''Charter of Rights and Freedoms'': Overview”


This script does not deal with:
==Understand your legal rights==
*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 [http://www.chrc-ccdp.ca/ 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?==
===You are protected against discrimination under BC law===
The Code prohibits discrimination based on any of the following 16 protected characteristics, called '''prohibited grounds of discrimination''':
If you’re treated differently than others based on personal characteristics such as the colour of your skin or your sex, it’s called '''discrimination'''. Discrimination can take the form of harassment, unequal pay for similar work, publications that discriminate or spread hatred, or simply, negative differential treatment.
*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:
In BC, the ''[http://canlii.ca/t/843q Human Rights Code]'' prohibits discrimination based on various personal characteristics. These are called '''protected grounds'''. They include:
*complained, or might complain, to the Tribunal
*your race, colour, ancestry, or place of origin
*was named (or might be named) in a complaint
*your age (if you’re 19 and above)
*was, or might be, a witness, or
*your sex, sexual orientation, or gender identity or expression
*helped, or might help, someone with a complaint
*your marital or family status
*your religion or political belief
*any physical or mental disability


The Code prohibits discrimination in the following 8 protected areas:
The Code prohibits discrimination in these '''areas''':
*employment—section 13
*employment
*tenancy premises (renting property)—section 10
*renting or purchasing property
*accommodation, service, and a facility made available to the public—section 8
*services and facilities open to the public
*publications—section 7
*publications 
*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 [http://www.bchrc.net/overview_of_human_rights_law#protected chart] of protected grounds and protected areas produced by the BC Human Rights Clinic. Some of the exceptions are explained more below.
Some protected grounds apply only in certain areas. For example:
*your (lawful) source of income can’t be a factor in how someone treats you in renting you property
*any criminal convictions can’t be a factor in how an employer treats you in the workplace (as long as the conviction is unrelated to the job)


Human rights cases often involve employment, tenancy, services, and publications—here are some details on them:
The BC Human Rights Clinic provides a [http://www.bchrc.net/overview_of_human_rights_law#protected chart of protected grounds and protected areas]. 


==1. Employment—section 13==
===You are protected from discrimination in the workplace===  
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.
Everyone has a right to be free from discrimination in their work. 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 protected grounds in section 13 of the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec13_smooth Human Rights Code]'' is prohibited. Employers must provide a discrimination-free workplace, and they may be liable for discrimination, including harassment, by their workers. (For more on harassment in the workplace, see our information on [[Sexual Harassment (Script 271)|sexual harassment, no. 271]].)


For more on harassment in the workplace, see Script [[Sexual Harassment (Script 271)|271]].
====The employer’s duty to accommodate====
Employers must also '''accommodate''' workers to ensure they are treated fairly. Employers must take all reasonable steps to avoid a negative effect on a worker 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 make adjustments to accommodate these differences. They must take reasonable steps to remove the harm and support the worker to do the job.  


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.
====Undue hardship====
The employer’s duty to accommodate isn’t limitless. It extends only to the point where the accommodation starts causing the employer “'''undue hardship'''”.  


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.
Many human rights cases involve complaints that an employer has not accommodated a worker’s disability. The ''Human Rights Code'' does not define disability. Cases have said a disability is involuntary, is somewhat permanent, and impairs a person's ability to carry out the normal functions of life. Accommodation requires an employer '''and''' a worker (and a worker’s union, if they are in one) to find a practical solution to accommodate the worker’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.


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.


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.
See our information on [[Protection Against Job Discrimination (Script 270)|protection against job discrimination (no. 270)]] for more on discrimination in the workplace.


Script [[Protection Against Job Discrimination (Script 270)|270]] has more on employment discrimination.
===You are protected from discrimination when renting property===
No person can refuse to rent a space (for example, an apartment or an office) based on the protected grounds in section 10 of the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec10_smooth Human Rights Code]''. Nor can they discriminate against a person regarding a term or condition of the tenancy, such as the amount of the security deposit, use of common spaces, or provision of repairs. They can’t charge a higher rent or evict someone based on a protected ground.


==2. Tenancy premises (renting property)—section 10==
There are some exceptions under the law:
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.
*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 age 55 and over, or couples or families with one member 55 or over.
*In some cases, rentals may also be restricted to people with mental or physical disabilities if the residence is designed for people with disabilities.


The following exceptions apply:
===You are protected from discrimination by service providers===
*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
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 ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec8_smooth Human Rights 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.
*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==
There are two exceptions under the law:
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, like washrooms or change rooms, can be restricted by sex.
*public facilities to be restricted by sex (washrooms, change rooms). But case law may change this.
*Insurance companies can factor someone’s sex, age, and any disability into determining their premiums or benefits under life or health insurance policies.  
*insurance companies to distinguish based on sex and mental and physical disability by charging different premiums and paying different benefits.


==4. Publications—section 7==
===You are protected from discrimination in publications===
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.
The ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec7_smooth Human Rights Code]'' prohibits publications that indicate discrimination or an intention to discriminate, or that are likely to expose a person or group to hatred or contempt. This includes any published statement, notice, sign, or other representation that is not private. This protection does not cover publications that express offensive or hurtful ideas yet fall short of discriminating or promoting hatred.  


==Exceptions and special programs under the ''Human Rights Code''==
===There are some exceptions to human rights laws in BC===
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.
A charitable, philanthropic, religious, educational, or social organization that is not operated for profit may be able to give a preference to members of an identifiable group. 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 identity 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.
In addition, organizations can ask the Human Rights Tribunal to approve a specific program or activity as a '''special program''' under the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec42_smooth Human Rights 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==
===More on the “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.
The ''Human Rights 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 '''duty to accommodate''' might apply, for example, to a restaurant or apartment building requiring them to provide a ramp for people who use wheelchairs.


What undue hardship is, however, can vary from case to case. If you think it may apply to you, see a lawyer.
Accommodating differences may cause some hardship, as (for example) the wheelchair ramp costs money to build. The duty to accommodate extends only to the point where the accommodation starts causing '''undue hardship'''. Hardship becomes undue if it would be unfair to expect the accommodating party to take action, given their size, profits, or other factors.


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 parties to take part in a process to try to accommodate. Failure to take part in the process can violate the ''Human Rights Code''. A person requesting accommodation is entitled only to reasonable — not perfect — accommodation. Both parties may have to compromise.


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.
{| class="wikitable"
|align="left"|'''Tip'''
Identifying a duty to accommodate and determining what amounts to undue hardship can vary from case to case. If you think a duty to accommodate may apply to your situation, you can seek legal advice. See our information on [[Low Cost and Free Legal Services (Script 430)|free and low-cost legal help (no. 430)]].
|}
===If someone discriminates against you===
If you think someone has violated your human rights under the ''[http://canlii.ca/t/843q Human Rights Code]'', you have options.


Also, a request for accommodation may need medical evidence to support it.
You can make a '''complaint to the Human Rights Tribunal'''. The tribunal deals with complaints under the ''Human Rights Code''. It operates like a court but is less formal. It has staff who help people solve complaints without going to a hearing. If that’s not possible, they hold a hearing to decide if there was discrimination. We explain the process to make a complaint to the tribunal shortly.  


==What can you do if someone discriminates against you?==
If the discrimination is at your '''place of work''' and you belong to a union, the union may be able to help you. Or you may be able to make a complaint to the Employment Standards Branch, the government office that administers the ''Employment Standards Act''. Depending on the circumstances, you might be able to sue in court for wrongful dismissal. See our information on [[Protection Against Job Discrimination (Script 270)|protection against job discrimination (no. 270)]].  
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.
You could '''seek legal advice''' on your options. You could try the Lawyer Referral Service (call 1-800-663-1919) or see our information on [[Low Cost and Free Legal Services (Script 430)|free and low-cost legal help (no. 430)]].


The Tribunal has information sheets on the Code, the complaint process, and many other topics. To get this material, see the [http://www.bchrt.bc.ca/ Tribunal website] or call 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC.
{| class="wikitable"
|align="left"|'''Tip'''
If you complain to the Human Rights Tribunal, and also file a complaint (grievance) with a union or sue your 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.
|}
==To make a discrimination complaint==


==What is the Human Rights Tribunal?==
===Step 1. Make a complaint to 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.
Get a '''complaint form''' from the Human Rights Tribunal, fill it in, and file it with the tribunal within '''six months''' of when the discrimination happened. If you wait more than six months to file your complaint, you must explain on the form why you are filing late.


==Do you need help filing a complaint?==
You can get a complaint form from the tribunal’s website at [http://www.bchrt.gov.bc.ca/complaint-process/complain/file.htm bchrt.bc.ca], from the tribunal office, or at government agent offices. The tribunal can handle complaints only if the ''Human Rights Code'' covers them. It is important to give all the information that supports your complaint. You can file the complaint in person, by mail, fax, courier, or email.
The [http://www.bchrc.net/ 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 [http://www.clasbc.net/ 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 [http://www.bchrc.net/ 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 has information sheets on the ''Human Rights Code'', the complaint process, and many other topics. To get this material, see the [http://www.bchrt.bc.ca/ tribunal website] or call 604-775-2000 in Vancouver or toll-free 1-888-440-8844 elsewhere in BC.
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.
==Step 2. The tribunal considers your complaint==
The Human Rights Tribunal reviews your complaint to see if it is covered by the ''Human Rights Code'' and if what happened could violate the Code. If the tribunal decides it can handle your complaint, it will notify the person or business you complained about, called the '''respondent'''.  


==What remedies can the Tribunal order?==
You and the respondent can try to settle the complaint. The tribunal offers mediators who help the parties to resolve the complaint on their own.
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:
 
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.
 
===Step 3. Attend a tribunal 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. If it is, the tribunal will order a '''remedy'''. 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 respondent:
*stop discriminating
*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)
*make available the right or opportunity 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
*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?==
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.
You can ask the Tribunal to [http://www.bchrt.bc.ca/law-library/guides-info-sheets/general-apps/15.htm 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 [http://www.bchrt.bc.ca/complaint-process/after-hearing/review.htm judicial review] of the Tribunal’s decision. That can be complicated, and you probably need legal help to do so.
===Step 4. Ask for a reconsideration===
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 [http://www.bchrt.bc.ca/law-library/guides-info-sheets/general-apps/15.htm tribunal website] explains what factors it will consider and gives examples of when it will and won’t reconsider its decision.


==What else can you do?==
===Step 5. Seek a judicial review===
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.
You can apply to the BC Supreme Court for [http://www.bchrt.bc.ca/complaint-process/after-hearing/review.htm judicial review] of the tribunal’s decision. There are time limits for suing in court, and the process is very involved. You probably need legal help to apply for judicial review.  


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 [[Protection Against Job Discrimination (Script 270)|270]], [[Termination Under the BC ''Employment Standards Act'' (Script 280)|280]], and [[If You're Fired - Wrongful Dismissal (Script 241)|241]] for more details. The BC government also has information on [https://www2.gov.bc.ca/gov/content/justice/human-rights/human-rights-protection human rights protection].
==Get help==


==Are there time limits for filing a complaint and suing?==
===Filing a human rights complaint===
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.
The '''BC Human Rights Clinic''' may be able to help you file a complaint with the Human Rights Tribunal and help you at a hearing. The clinic is operated by the Community Legal Assistance Society (CLAS). 
:Telephone: 604-689-8474 in Vancouver
:Toll-free: 1-877-689-8474
:Web: [https://www.bchrc.net bchrc.net]


There are also time limits for suing in court—you need legal advice about that.
In the Greater Victoria area, the '''University of Victoria Law Centre''' provides help for eligible human rights complainants and respondents.
 
:Telephone: 250-385-1221
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.
:Web: [https://www.bchrc.net thelawcentre.ca]


[updated February 2018]


'''The above was last reviewed for legal accuracy by [http://www.clasbc.net/laura_track Laura Track], Community Legal Assistance Society and [http://dir.gov.bc.ca/gtds.cgi?esearch=&view=detailed&sortBy=name&for=people&attribute=name&matchMethod=is&searchString=Katherine+Hardie&objectId=43315 Katherine Hardie], BC Human Rights Tribunal.'''


[updated February 2018]
'''The above was last reviewed for accuracy and edited by John Blois.'''
----


{{Dial-A-Law Copyright}}
{{Dial-A-Law Copyright}}


{{Dial-A-Law_Navbox|type=rights}}
{{Dial-A-Law_Navbox|type=rights}}

Revision as of 05:46, 1 March 2019

Dial-A-Law features free information on the law in British Columbia in over 130 topic areas. A service of People's Law School, Dial-A-Law is available on Clicklaw Wikibooks, its own website at dialalaw.ca, and on the telephone at 1-800-565-5297.
Dial-A-Law
Dial-A-Law‎
This page is
from Dial-A-Law‎,
a starting point for
information on the law
in British Columbia.
See the full contents.
About
Introduction
Consumer & Money
Work & Business
Families & Children
Life
Rights & Citizenship
 · Defamation

 · Information & Privacy

 · Human Rights & Discrimination

 · Charter Rights: Overview

 · Charter Rights: Legal Rights

 · Charter Rights: Equality Rights

 · Aboriginal Law

 · Immigrating to BC

 · Seniors' Rights & Elder Abuse
Courts & Crime
From
Visit more from People's Law School
People's Law School
People's Law School
v • d • e

British Columbia has a law to help protect you from discrimination and harassment. Learn what it covers, and what’s involved in making a complaint that someone has discriminated against you.

Understand your legal rights

You are protected against discrimination under BC law

If you’re treated differently than others based on personal characteristics such as the colour of your skin or your sex, it’s called discrimination. Discrimination can take the form of harassment, unequal pay for similar work, publications that discriminate or spread hatred, or simply, negative differential treatment.

In BC, the Human Rights Code prohibits discrimination based on various personal characteristics. These are called protected grounds. They include:

  • your race, colour, ancestry, or place of origin
  • your age (if you’re 19 and above)
  • your sex, sexual orientation, or gender identity or expression
  • your marital or family status
  • your religion or political belief
  • any physical or mental disability

The Code prohibits discrimination in these areas:

  • employment
  • renting or purchasing property
  • services and facilities open to the public
  • publications

Some protected grounds apply only in certain areas. For example:

  • your (lawful) source of income can’t be a factor in how someone treats you in renting you property
  • any criminal convictions can’t be a factor in how an employer treats you in the workplace (as long as the conviction is unrelated to the job)

The BC Human Rights Clinic provides a chart of protected grounds and protected areas.

You are protected from discrimination in the workplace

Everyone has a right to be free from discrimination in their work. 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 protected grounds in section 13 of the Human Rights Code is prohibited. Employers must provide a discrimination-free workplace, and they may be liable for discrimination, including harassment, by their workers. (For more on harassment in the workplace, see our information on sexual harassment, no. 271.)

The employer’s duty to accommodate

Employers must also accommodate workers to ensure they are treated fairly. Employers must take all reasonable steps to avoid a negative effect on a worker 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 make adjustments to accommodate these differences. They must take reasonable steps to remove the harm and support the worker to do the job.

Undue hardship

The employer’s duty to accommodate isn’t limitless. It extends only to the point where the accommodation starts causing the employer “undue hardship”.

Many human rights cases involve complaints that an employer has not accommodated a worker’s disability. The Human Rights Code does not define disability. Cases have said a disability is involuntary, is somewhat permanent, and impairs a person's ability to carry out the normal functions of life. Accommodation requires an employer and a worker (and a worker’s union, if they are in one) to find a practical solution to accommodate the worker’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.

See our information on protection against job discrimination (no. 270) for more on discrimination in the workplace.

You are protected from discrimination when renting property

No person can refuse to rent a space (for example, an apartment or an office) based on the protected grounds in section 10 of the Human Rights Code. Nor can they discriminate against a person regarding a term or condition of the tenancy, such as the amount of the security deposit, use of common spaces, or provision of repairs. They can’t charge a higher rent or evict someone based on a protected ground.

There are some exceptions under the law:

  • 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 age 55 and over, or couples or families with one member 55 or over.
  • In some cases, rentals may also be restricted to people with mental or physical disabilities if the residence is designed for people with disabilities.

You are protected from discrimination by service providers

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 Human Rights 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.

There are two exceptions under the law:

  • Public facilities, like washrooms or change rooms, can be restricted by sex.
  • Insurance companies can factor someone’s sex, age, and any disability into determining their premiums or benefits under life or health insurance policies.

You are protected from discrimination in publications

The Human Rights Code prohibits publications that indicate discrimination or an intention to discriminate, or that are likely to expose a person or group to hatred or contempt. This includes any published statement, notice, sign, or other representation that is not private. This protection does not cover publications that express offensive or hurtful ideas yet fall short of discriminating or promoting hatred.

There are some exceptions to human rights laws in BC

A charitable, philanthropic, religious, educational, or social organization that is not operated for profit may be able to give a preference to members of an identifiable group. 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 identity or expression, marital status, political belief, colour, ancestry, or place of origin.

In addition, organizations can ask the Human Rights Tribunal to approve a specific program or activity as a special program under the Human Rights 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.

More on the “duty to accommodate”

The Human Rights 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 duty to accommodate might apply, for example, to a restaurant or apartment building requiring them to provide a ramp for people who use wheelchairs.

Accommodating differences may cause some hardship, as (for example) the wheelchair ramp costs money to build. The duty to accommodate extends only to the point where the accommodation starts causing undue hardship. Hardship becomes undue if it would be unfair to expect the accommodating party to take action, given their size, profits, or other factors.

The duty to accommodate requires all parties to take part in a process to try to accommodate. Failure to take part in the process can violate the Human Rights Code. A person requesting accommodation is entitled only to reasonable — not perfect — accommodation. Both parties may have to compromise.

Tip

Identifying a duty to accommodate and determining what amounts to undue hardship can vary from case to case. If you think a duty to accommodate may apply to your situation, you can seek legal advice. See our information on free and low-cost legal help (no. 430).

If someone discriminates against you

If you think someone has violated your human rights under the Human Rights Code, you have options.

You can make a complaint to the Human Rights Tribunal. The tribunal deals with complaints under the Human Rights Code. It operates like a court but is less formal. It has staff who help people solve complaints without going to a hearing. If that’s not possible, they hold a hearing to decide if there was discrimination. We explain the process to make a complaint to the tribunal shortly.

If the discrimination is at your place of work and you belong to a union, the union may be able to help you. Or you may be able to make a complaint to the Employment Standards Branch, the government office that administers the Employment Standards Act. Depending on the circumstances, you might be able to sue in court for wrongful dismissal. See our information on protection against job discrimination (no. 270).

You could seek legal advice on your options. You could try the Lawyer Referral Service (call 1-800-663-1919) or see our information on free and low-cost legal help (no. 430).

Tip

If you complain to the Human Rights Tribunal, and also file a complaint (grievance) with a union or sue your 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.

To make a discrimination complaint

Step 1. Make a complaint to the Human Rights Tribunal

Get a complaint form from the Human Rights Tribunal, fill it in, and file it with the tribunal within six months of when the discrimination happened. If you wait more than six months to file your complaint, you must explain on the form why you are filing late.

You can get a complaint form from the tribunal’s website at bchrt.bc.ca, from the tribunal office, or at government agent offices. The tribunal can handle complaints only if the Human Rights Code covers them. It is important to give all the information that supports your complaint. You can file the complaint in person, by mail, fax, courier, or email.

The tribunal has information sheets on the Human Rights Code, the complaint process, and many other topics. To get this material, see the tribunal website or call 604-775-2000 in Vancouver or toll-free 1-888-440-8844 elsewhere in BC.

Step 2. The tribunal considers your complaint

The Human Rights Tribunal reviews your complaint to see if it is covered by the Human Rights Code and if what happened could violate the Code. 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 settle the complaint. The tribunal offers mediators who help the parties to resolve the complaint on their own.

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.

Step 3. Attend a tribunal 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. If it is, the tribunal will order a remedy. 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 respondent:

  • stop discriminating
  • make available the right or opportunity 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.

Step 4. Ask for a reconsideration

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.

Step 5. Seek a judicial review

You can apply to the BC Supreme Court for judicial review of the tribunal’s decision. There are time limits for suing in court, and the process is very involved. You probably need legal help to apply for judicial review.

Get help

Filing a human rights complaint

The BC Human Rights Clinic may be able to help you file a complaint with the Human Rights Tribunal and help you at a hearing. The clinic is operated by the Community Legal Assistance Society (CLAS).

Telephone: 604-689-8474 in Vancouver
Toll-free: 1-877-689-8474
Web: bchrc.net

In the Greater Victoria area, the University of Victoria Law Centre provides help for eligible human rights complainants and respondents.

Telephone: 250-385-1221
Web: thelawcentre.ca


[updated February 2018]

The above was last reviewed for legal accuracy by Laura Track, Community Legal Assistance Society and Katherine Hardie, BC Human Rights Tribunal.


Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.


v • d • e
 
Consumer & Money
Cars & Getting Around
Consumer
Money & Debt
 
Work & Business
Work
Business
 
Families & Children
Family Relationships
Divorce & Separation
Children
Resolving Family Disputes
 
Life
Health
Home & Neighbours
Rights & Citizenship
Wills, Planning & Estates
 
Courts & Crime
Courts & Resolving Disputes
Crime
Legal Help & Lawyers
Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Human_Rights_and_Discrimination_Protection&oldid=41484"