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Difference between revisions of "BC Human Rights Code (6:III)"
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For a specific example of a BCHRT case that applies the BFOR test in a disability context, please refer to ''Kerr v Boehringer Ingelheim (Canada) (No 4)'', 2009 BCHRT 196. | For a specific example of a BCHRT case that applies the BFOR test in a disability context, please refer to ''Kerr v Boehringer Ingelheim (Canada) (No 4)'', 2009 BCHRT 196. | ||
What may be considered as “undue hardship” varies by employer depending on the circumstances. In ''Central Okanagan School District No 23 v Renaud'', [1992] 2 SCR 970 at para | What may be considered as “undue hardship” varies by employer depending on the circumstances. In ''Central Okanagan School District No 23 v Renaud'', [1992] 2 SCR 970 at para 21-23, the Supreme Court of Canada noted that it is more than a minor inconvenience, but that actual interference must be established. Factors the court may consider financial cost; health and safety; and flexibility and size of the workplace. For a more exhaustive guide for employers and employees seeking accommodation, please see the B.C. Human Rights Clinic’s “[http://www.bchrc.net/duty_to_accommodate FAQ – Duty to Accommodate]”. | ||
The “''bona fide'' occupational requirement” 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. | |||
7. Discrimination by Unions, Employer Organizations or Occupational A ssociationsSection 14 states that trade unions, employers’ organizations or occupational associations may not deny membership to any person or discriminate against a person on the basis of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age, or unrelated criminal record. Please refer to De Lima v. The Empire Landmark and Hotel Conference Centre and Major, 2006 BCHRT 440.Protection against denial of membership has been held to apply only against an implicated union, organization, or association and not against an individual, since “persons” are not covered by s 14. Please refer to Ratsoy v BC Teachers’ Federation and others, 2005 BCHRT 53 at para 23. This differs from other protections granted by the HRC, which, in appropriate circumstances, generally do allow an action to be brought against both an organization (e.g. an employer) and its individual members (e.g. a manager).B.Prohibited Grounds of Discrimination 1.GeneralProhibited grounds of discrimination include gender, age (for those 19 and over), race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sexual orientation, criminal record (that is not relevant to the employment, union or occupational association), and lawful source of income. Note that not all of the areas listed in ss 7 -14 of the HRC are afforded protection against all forms of discrimination. For example, the HRC does not prohibit landlords from discriminating on the basis of a tenant’ s political beliefs. The grounds of discrimination that apply depend on the section of the HRC in question. One must first decide which section is involved and then check to see which grounds are associated with that section (see the helpful chart on page 6-3 above) . To determine whether a violation of the HRC has occurred, consult the relevant section of the HRC and review recent case law. Case law can be found on the B.C. Human Rights Tribunal website (www.bchrt.bc.ca\decisions), indexed by year, and searchable based on a variety of criteria. | |||
p6-8 | p6-8 | ||