Protection Against Job Discrimination (Script 270)

From Clicklaw Wikibooks

The BC Human Rights Code prohibits discrimination in employment. The BC Human Rights Tribunal handles discrimination complaints. This script explains how the Code protects you on the job and what you can do if an employer discriminates against you. Also, check the following related scripts:

  • 236, called “Human Rights and Discrimination Protection”
  • 271, called “Sexual Harassment”

Protection against discrimination in your job

Federal and provincial human rights laws protect you from workplace discrimination. If you are qualified for a job, it is illegal for an employer to fire you, or to not hire or promote you, based on the grounds covered in the Code. In addition, employers are liable for discrimination by their employees. If you’re fired, you may also be able to sue the employer in court for wrongful dismissal.

This script does not explain the Canadian Human Rights Act, which covers businesses and activities regulated by federal law. These include banks, railways, airlines and airports, phone and cable companies, and the federal government. If your case involves federal law, contact the Canadian Human Rights Commission at 1.888.214.1090. If you don’t know whether to contact the Tribunal or the Commission, contact either of them—they can tell you which one can handle your complaint.

What protection does BC law give?

The BC Human Rights Code makes it illegal for employers and others to discriminate based on any of the following things, called “grounds”:

  • race
  • colour
  • ancestry
  • place of origin
  • political belief
  • religion
  • marital status
  • family status (including family obligations of one person to another, not just parent - child)
  • physical disability, including hiv and aids
  • mental disability
  • sex (including pregnancy)
  • sexual orientation
  • gender identity or expression
  • age (if you are 19 years of age or older)
  • criminal or summary convictions (may include conduct that did not result in a charge or conviction, as long as it is unrelated to the job)
  • retaliation (if someone discriminates against you because you complained to the Tribunal)

Discrimination includes decisions based on the fact that you are in one of the protected classes (for example, you weren’t hired because of your religion or gender). The ground does not need to be the only or main reason for the decision. It is discrimination if the ground is a factor in the decision.

The Human Rights Code also protects you against employment policies or practices that are not obviously discriminatory but tend to place a greater burden on employees who are members of a protected class. For example, a job requirement may adversely affect a person with a disability. The employer must make reasonable efforts to avoid an adverse impact on an employee related to the grounds of discrimination.

The Code protects you in all aspects of employment, including if you are applying for a job, if you already have a job, or if you are denied a promotion in your current job. That means employers cannot use the grounds in the Code (or your involvement in an earlier complaint) to:

  • fire you.
  • not hire you.
  • not promote you.
  • discriminate in some other way against you in your job.

The Code prohibits any person from discriminating against you if their conduct has a sufficient connection to your employment. For example, this would include harassment based on a ground of discrimination that adversely affects your work environment.

Employment agencies and unions can’t discriminate against you either. For example, a union can’t use any of the grounds in the Code to stop you from joining. And unions cannot discriminate in employment. But this would normally apply only if a collective agreement discriminated (the union negotiated a discriminatory term of employment) or the union impeded an employer’s efforts to accommodate.

But a potential employer or your current employer may be able to make job-related decisions (for example, to refuse to hire or promote you) even though it appears that the decision is discriminatory—if the employer can show that it based the decision on a bona fide (legitimate) occupational requirement. A bona fide occupational requirement is a legitimate job-related qualification where the employer cannot accommodate the protected ground without facing undue hardship. For example, a women’s health club could probably limit work cleaning a women’s locker room while women are present to a woman cleaner, but if the job involved cleaning after hours, it probably could not limit it to women.

In an employment interview, the interviewer can ask questions about personal characteristics as long as the questions are not discriminatory. That depends on context. For example, an interviewer could ask a person where they come from as part of normal conversation.

Does the Code cover job ads?

Yes. Employers cannot advertise a preference, specification, or limitation based on the grounds in the Code, unless it’s a bona fide (legitimate) job requirement. Job ads should describe the job and the necessary skills and training, not a certain type of person. Normally, everyone has the right to equal opportunity in the workplace—considering only the qualifications for the job, not the grounds in the Code.

Are men and women supposed to get the same pay for similar work?

Yes. Generally, employers must not pay a man more than a woman for similar, or substantially similar, work. The reverse of this is also true: employers must not pay a woman more than a man for similar or substantially similar work. Whether work is similar, or substantially similar, depends on many things, including the skill, effort, and responsibility a job requires. Employers can still pay different wages to different people based on seniority, merit, and productivity.

What about mandatory retirement? Mandatory retirement is prohibited in BC (with exceptions for legitimate job requirements). More on this is available on the BC government website.

What are some examples of discrimination in employment?

Typical examples of job discrimination include an employer:

  • changing a term or condition of employment that interferes with an employee’s religious beliefs.
  • changing a term or condition of employment that interferes with a substantial parental or family duty.
  • turning down a woman for a construction job, believing that only men are qualified for that work.
  • failing to take reasonable steps to accommodate a deaf employee.
  • firing an employee because of a mental or physical disability.
  • harassing (or letting other employees harass) an employee over their race, religion, sex or other prohibited ground. An employer is responsible for any discrimination or harassment by employees. For more on sexual harassment, check script 271.
  • requiring an employee with a drug addiction to undergo drug testing (unless the employer can justify the testing).

What can you do if an employer discriminates against you?

File a complaint with the BC Human Rights Tribunal. Its website has details. Or you can call it at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC (also, check script 236, called “Human Rights and Discrimination Protection”).

You must show that the employer’s conduct (or the conduct of another person) had an adverse impact on you and that one of the grounds of discrimination was at least a factor in the adverse impact. If you show that, the employer must prove their conduct was justified (a bona fide occupational requirement). Write down anything the employer says or does that may be discriminatory. Keep your written record—it may be useful evidence later.

The Tribunal will review your complaint and if it finds that the complaint may involve a violation of the Code, the Tribunal will ask the employer to reply to your complaint. The Tribunal can try to help you and the employer settle the complaint. If that is not possible, the Tribunal may hold a hearing. If it decides your complaint is justified, the Tribunal can order the employer or other person to stop discriminating and give you your job back. Or order them to give you the right to compete for a job. It can also order the employer or other person to pay you money—called compensation—for lost income (including wages and disability and other benefits) and expenses. The Tribunal can also order the employer or other person to pay you compensation for injury to your dignity, feelings, and self-respect. In most cases, these damages are under $10,000, but some damage awards have been much higher, up to $75,000.

Do you need help filing a complaint with the Tribunal?

The Human Rights Clinic may be able to help you file a complaint with the Tribunal. The Clinic may also be able to help you at a hearing. The Clinic is operated by the Community Legal Assistance Society.

Do you belong to a union?

If you belong to a union, one option is to ask the union to file a grievance about the discrimination by your employer. If the union refuses to file a grievance for you for some discriminatory reasons, you can complain either to the Labour Relations Board or the Human Rights Tribunal—if the union refused to file a grievance for you because of some discriminatory reason.

Does the Employment Standards Act cover your case?

The Employment Standards Act covers some of the same situations as the Human Rights Code. But the Employment Standards Branch, (which enforces the Employment Standards Act) cannot apply the Code. For example, under the Employment Standards Act, an employer cannot fire you because you are pregnant. But the Branch cannot give you the same remedy you could get under the Code. Check script 280, called “Termination under the BC Employment Standards Act”, for more information. It explains how to file a complaint with the Branch.

Can you sue for wrongful dismissal?

If you lose your job because of discrimination, you may also be able to sue in court for wrongful dismissal. Check script 241, called “If You're Fired - Wrongful Dismissal”, for more information. But complaining to the Tribunal may work better in this type of case. As well, a wrongful dismissal lawsuit can be complicated and expensive. If you are thinking about suing, get legal advice first.

Have you seen a lawyer?

A lawyer can give you legal advice about your situation. For the name of a lawyer, call the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in BC.

Are there time limits for filing a complaint or suing?

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, 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. There are also time limits for suing in court—you need legal advice about that.

If you complain to the Tribunal and also file a complaint (or grievance) with a union or under the Employment Standards Act, or sue the employer for wrongful dismissal, the Tribunal can wait until your other complaints and the lawsuit are finished before dealing with your complaint.

Can an employer make you give up your rights under the Human Rights Code?

No. The Code does not let people agree to give up their rights. An employer cannot ask you to sign a contract that says the employer can discriminate against you.

[updated June 2018]

The above was edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

Personal tools