BC Human Rights Code (6:III): Difference between revisions
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Section 13 provides that no person shall refuse to employ another person or discriminate against a person with respect to employment or any term or condition of employment on the basis of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, or age of that person or because that person has a criminal record that is unrelated to the employment. Please refer to ''Ratzlaff v Marpaul Construction Limited and Rondeau'', 2010 BCHRT 13. | Section 13 provides that no person shall refuse to employ another person or discriminate against a person with respect to employment or any term or condition of employment on the basis of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, or age of that person or because that person has a criminal record that is unrelated to the employment. Please refer to ''Ratzlaff v Marpaul Construction Limited and Rondeau'', 2010 BCHRT 13. | ||
In addition, the | In addition, because all individuals over 19 are protected by the ground of age, individuals in both the public and private sector are able to choose the age at which they wish to retire and are protected from discrimination based on age (s 1, “age”). | ||
'''Exemption:''' In the case of discrimination on the basis of disability, Section 13(4) permits discrimination in employment if the basis for discrimination concerns a “''bona fide'' occupational requirement” (BFOR). In ''British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union'', (1999) 35 CHRR d/257 at para 54 (“Meiorin”), the Supreme Court of Canada established a three-part test for BFOR. An initial investigation determines whether the standard, policy or practice has the direct or indirect effect of excluding or negatively affecting individuals protected by the ''HRC''. The onus of establishing sufficient evidence of a prima facie case lies with the complainant. | '''Exemption:''' In the case of discrimination on the basis of disability, Section 13(4) permits discrimination in employment if the basis for discrimination concerns a “''bona fide'' occupational requirement” (BFOR). In ''British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union'', (1999) 35 CHRR d/257 at para 54 (“Meiorin”), the Supreme Court of Canada established a three-part test for BFOR. An initial investigation determines whether the standard, policy or practice has the direct or indirect effect of excluding or negatively affecting individuals protected by the ''HRC''. The onus of establishing sufficient evidence of a prima facie case lies with the complainant. Please see McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4. | ||
In order to establish a ''prima facie'' case the complainant must introduce evidence which, on its face, satisfies the following three elements: | In order to establish a ''prima facie'' case the complainant must introduce evidence which, on its face, satisfies the following three elements: | ||
#The complainant must establish that they are a member of a protected group. | #The complainant must establish that they are a member of a protected group. | ||
#They must establish that they suffered adverse treatment. | #They must establish that they suffered adverse treatment. | ||
#They must establish a nexus or connection between their protected status and the | #They must establish a nexus or connection between their protected status and the adverse treatment. | ||
It is important to note that a claimant need not establish that their membership in a protected group was the sole or primary reason for their adverse treatment. It is sufficient to establish that it was a reason for their adverse treatment. | It is important to note that a claimant need not establish that their membership in a protected group was the sole or primary reason for their adverse treatment. It is sufficient to establish that it was a reason for their adverse treatment. | ||
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The BFOR exception was unaffected by the 2008 amendments, and continues to apply to age discrimination as it relates to mandatory retirement. Thus, if the employer can establish one or more BFORs related to age, then mandatory retirement can still be imposed on those grounds at any age. | The BFOR exception was unaffected by the 2008 amendments, and continues to apply to age discrimination as it relates to mandatory retirement. Thus, if the employer can establish one or more BFORs related to age, then mandatory retirement can still be imposed on those grounds at any age. | ||
Also, distinctions based on age are not prohibited insofar as they relate to a ''bona fide'' seniority scheme. Distinctions based on marital status, physical or mental disability, sex or age will continue to be allowed under bona fide retirement, superannuation, or pension plans, and under ''bona fide'' insurance plans, including those which are self-funded by employers or provided by third parties: see s 13(3). Mandatory retirement may also not constitute a breach of the Code when it is part of a bona fide pension plan as long as it is not done in order to circumvent the rights of individuals. | Also, distinctions based on age are not prohibited insofar as they relate to a ''bona fide'' seniority scheme. Distinctions based on marital status, physical or mental disability, sex or age will continue to be allowed under bona fide retirement, superannuation, or pension plans, and under ''bona fide'' insurance plans, including those which are self-funded by employers or provided by third parties: see s 13(3). Mandatory retirement may also not constitute a breach of the Code when it is part of a bona fide pension plan as long as it is not done in order to circumvent the rights of individuals. | ||
=== 7. Discrimination by Unions, Employer Organizations or Occupational Associations === | === 7. Discrimination by Unions, Employer Organizations or Occupational Associations === | ||
