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Difference between revisions of "BC Human Rights Code (6:III)"
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In BC, the grounds of family and marital status are protected in the areas of employment; employment advertising; membership in a trade union, employer’s organization, or occupational association; public services; tenancy and publications. Only marital status is protected in the area of purchase of property. | In BC, the grounds of family and marital status are protected in the areas of employment; employment advertising; membership in a trade union, employer’s organization, or occupational association; public services; tenancy and publications. Only marital status is protected in the area of purchase of property. | ||
=== 6.Physical or Mental | === 6.Physical or Mental Disability === | ||
Disability is not defined in the HRC. However, the concept of physical disability, for human rights purposes, generally indicates a: “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life. Please refer to ''Boyce v New Westminister (City)'' (1994), 24 CHRR D/441 at para 50. See ''Rogal v Dalgliesh'', 2000 BCHRT 22 at para 19 for a more recent case that refers to ''Boyce v New Westminister (City)''’s definition of physical disability. In ''Morris v BCRail'', 2003 BCHRT 14, at para 214, the Tribunal set out the following three aspects for assessing whether an individual has a physical or mental disability: | |||
*the individual’s physical or mental impairment, if any; | |||
*the functional limitations, if any, which result from that impairment; and | |||
*the social, legislative or other response to that impairment and/or limitations, assessed in light of the concepts of human dignity, respect and the right to equality. | |||
Furthermore, according to ''Morris v BC Rail'' at para 207, proof of impairment and/or limitation, while relevant, will not be required in all cases. See ''McGowan v Pretty Estates'', 2013 BCHRT 40 (CanLII) for more information. | |||
The protection of the HRC extends to those who are perceived to have a disability or to be at risk of becoming disabled in the future. As such, the Tribunal has rejected the application of strict criteria to determine what constitutes a physical or mental disability. This has led to a somewhat expansive definition. For example, protection has been specifically applied to persons with AIDS, persons who are HIV positive, and persons believed to be HIV positive, all of whom are considered to have a physical disability. Please refer to ''McDonald v. Schuster Real Estate'', 2005 BCHRT 177 at para 24 and ''J v London Life Insurance Co'' (1999), 36 CHRR D/43 (BCHRT) at para 42. | |||
As noted above, protection from discrimination due to physical disability, extends to discrimination on the basis of a perceived propensity to become disabled in the future. In ''J v London Life Insurance Co'' at para 46, for example, the Tribunal found that the HRC prohibited discrimination against a person based on the fact that his spouse was HIV positive. Protection under this ground has also been extended to those who are suffering from addictions issues. | |||
Where a behaviour or policy adversely affects a protected group or person, either directly or indirectly, there is a duty to accommodate, meaning that all efforts must be taken to accommodate the group or person to the point of undue hardship. Examples include installing wheelchair access and allowing workers days off on religious holidays. Please refer to ''Ferguson v Kimpton'', 2006 BCHRT 62 at para 68. | |||
An employer’s duty to accommodate involves a substantive aspect as well as a procedural aspect. For instance, an employer who has exhausted all reasonable means of accommodation short of incurring undue hardship would have met their substantive duty to accommodate. What constitutes reasonable measures is a question of fact and will differ from case to case. However, the employer’s conduct may still be found to have failed to comply with the procedural aspect of the duty to accommodate if they treat the complainant unfairly while fulfilling their substantive duty. Please refer to ''British Columbia (Public Service Employees Relations Commission) v British Columbia Government and Service Employees Union (BCGSEU)'', [1999] 3 SCR 3 (“Meiorin”), at para 65-66. | |||
=== 7. Age (19 or over) === | |||
Age can refer to an individual’s legal age, membership in a specific age-category, or a generalized characterization of a specific age. In BC, age is a protected ground of discrimination in the areas of employment; employment advertising; membership in a trade union, employer’s organization, or occupational association; public services; tenancy and publications. Please refer to ''Miu v Vanart Aluminum and Tam'', 2006 BCHRT 219 at para 18. | |||
In each of these areas, age protection is restricted to those 19 years of age and over. However, those under 19 years are still able to bring complaints to the BCHRT based on grounds other than age. | |||
=== 8. Criminal or Summary Conviction === | |||
BC’s HRC protects individuals convicted of a criminal or summary conviction offence, or a perceived conviction (i.e. arrest or stayed charges) as long as the offence is unrelated to the employment or the intended employment of the individual. Please refer to ''Purewall v ICBC'', 2011 BCHRT 43 at para 21, ''Clement v Jackson and Abdulla'', 2006 BCHRT 411 at para 14 and ''Korthe v Hillstrom Oil Company Ltd'' (1997), (BCHRT) at para 23-28. In an effort to establish whether or not a conviction may affect an employment decision, courts require an assessment of the relationship between the conviction and the job description. As such, employers must take into account the circumstances of the conviction in order to determine whether or not the charge relates to the employment. In ''Woodward Stores (British Columbia) v McCartney'' (1983) 43 BCLR 314 at para 7-9, Justice MacDonald laid out a list of criteria to be considered in making this determination. These criteria are as follows: | |||
*Does the behaviour which formed the basis of the charge, if repeated, compromise the employers’ ability to conduct business safely and effectively? | |||
*What were the circumstances and details of the offence, e.g., what was the person’s age at the time of the offence and were there any extenuating factors? | |||
*How much time has passed since the charge? What has the individual done since that time and has there been any indication of recidivism? Has there been evidence of the individual’s desire for rehabilitation? | |||
In BC, the HRC extends protection on the basis of a criminal or summary conviction only in the area of employment. | |||
=== 9. Sexual Orientation === | |||
The HRC prohibits discrimination based on sexual orientation, affording protection for gay men, lesbians, bisexuals, and heterosexuals. The issue of whether or not BDSM is covered under the Code has not been tested yet but the issue was raised in one complaint that was dismissed on other grounds. ''Hayes v. Vancouver Police Department and Barker'', 2005 BCHRT 590. | |||
In BC, protection on the basis of sexual orientation is provided in the areas of employment; employment advertising; membership in a trade union, employer’s organization, or occupational association; public services; publications; tenancy and purchase of property. | |||
=== 10. Sex (includes sexual harassment, pregnancy discrimination and transgender discrimination) === | |||
Discrimination on the basis of sex, which is prohibited under the HRC, includes sexual harassment. Sexual harassment is defined as “unwelcome conduct of a sexual nature that detrimentally affects a work environment or leads to adverse job-related consequences for the victims of harassment”. Please refer to ''Janzen v Platy Enterprises Ltd'', [1989] 1 SCR 1252 at 1284. | |||
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, | |||
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