Human Rights and Discrimination Protection (No. 236)

From Clicklaw Wikibooks

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 many forms. Harassment (conduct a reasonable person would consider objectionable or unwelcome), unequal pay for similar work, publications that discriminate or spread hatred, or negative differential treatment are all examples of discrimination.

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 (including membership in a trade union, employers’ organization or professional association)
  • 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.

To the point of 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”. Accommodation requires an employer and a worker to find a practical solution to accommodate the worker’s differences 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 human rights 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 resolve 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) for more on these options.

Tip

If you complain to the Human Rights Tribunal, and also pursue another option (by filing a union grievance, making a complaint under the Employment Standards Act, or suing the employer for wrongful dismissal), the tribunal can wait until the other process is finished before dealing with your complaint. It is a good idea to seek legal advice on your options. See our information on free and low-cost legal help (no. 430).

To make a human rights 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 one year of when the discrimination happened. If you wait longer than one year, your complaint may still be accepted if the tribunal believes it is in the public interest to accept it and no party will be prejudiced because of the delay.

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

With 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: 604-622-1100 in Vancouver
Toll-free: 1-855-685-6222
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.



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