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| {{REVIEWEDPLS | reviewer = Bradley Martyniuk, Lindsay Kenney, and Katherine Hardie, BC Human Rights Tribunal|date= June 2018}} {{Dial-A-Law TOC|expanded = work}} | | {{REVIEWEDPLS | reviewer = [https://www.mooreedgarlyster.com/lawyers/sara-hanson Sara Hanson], Moore Edgar Lyster LLP|date= November 2022}} {{Dial-A-Law TOC|expanded = work}} |
| Being treated differently than others based on personal characteristics is called discrimination. The law protects you from discrimination at work. Learn your rights and options if someone discriminates against you.
| | If you’re treated badly or unfairly based on a part of your identity that is protected under human rights law (such as age or sex or religion), this is called '''discrimination'''. Learn your rights and options if someone discriminates against you in the workplace. |
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| ==Understand your legal rights== | | ==What you should know== |
| | ===Which human rights laws apply in your workplace=== |
| | There are provincial and federal human rights laws that protect workers from discrimination in the workplace. |
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| ===You are protected against discrimination in your job===
| | The BC ''Human Rights Code'' applies to most workplaces in the province. This information focuses on this 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), negative differential treatment, or getting unequal pay for similar work are all examples of discrimination.
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| There are federal and provincial human rights laws that protect workers from discrimination in the workplace. Most employers in BC are covered by the province’s ''[http://canlii.ca/t/843q Human Rights Code]''. But BC employers in certain industries that are federally regulated, such as banks and airlines, are covered by the ''[http://canlii.ca/t/7vh5 Canadian Human Rights Act]''. This law applies throughout the country. The federal law also applies to employers in the federal public service.
| | Federal human rights law applies to some workplaces, including those in federally-regulated industries (such as banking and telecommunications). |
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| The guidance below focuses on your rights under BC’s law. However, many of the same rules apply to workers covered by the federal law.
| | If your situation involves federal law, or you think it might, you can contact the Canadian Human Rights Commission. [https://www.chrc-ccdp.gc.ca/ See their website]. They can point you to information on federal human rights law. |
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| {| class="wikitable"
| | ===You are protected against discrimination in the workplace=== |
| |align="left"|'''Tip'''
| | The law protects you from discrimination at work. An employer must not discriminate against you based on certain parts of your identity. |
| If your situation involves federal law, contact the [http://www.chrc-ccdp.ca/ Canadian Human Rights Commission] at 1-888-214-1090. If you don’t know whether federal or provincial law applies, you can contact the Commission or the BC Human Rights Tribunal, which deals with complaints under the BC ''Human Rights Code''. Either agency can tell you which one can handle your complaint.
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| ===Employers must not discriminate based on protected grounds===
| | These are:<br> |
| Under the BC ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec13_smooth Human Rights Code]'', an employer must not discriminate against a worker based on these personal characteristics:
| | * your race, colour, ancestry, or where you’re from |
| *their race, colour, ancestry, or place of origin | | * your Indigenous identity |
| *their age (as long as they are age 19 or older) | | * your sex, sexual orientation, or gender identity or expression |
| *their sex (including pregnancy), sexual orientation, or gender identity or expression | | * your age |
| *their marital or family status (including family obligations of one person to another, not just parent–child) | | * any physical or mental disability |
| *their political belief or religion | | * your marital or family status |
| *any physical disability (including HIV and AIDS) or mental disability
| | * your religion or political belief |
| *any criminal convictions that are unrelated to the job | | * any criminal convictions that are unrelated to the job |
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| These are called '''protected grounds'''. You can not be treated differently than others in the workplace based on a protected ground.
| | The law calls these '''protected characteristics'''. You can’t be treated badly or unfairly in the workplace based on a protected characteristic. If you are, you’ve experienced discrimination. |
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| ====This protection applies in all aspects of employment====
| | ===This protection applies in all aspects of employment=== |
| The protection against discrimination applies in hiring, firing, wages, benefits, hours, and other terms and conditions of work. This means an employer cannot factor a protected ground into: | | The protection against discrimination applies in all aspects of your employment. It applies in hiring, firing, wages, benefits, hours, and other terms and conditions of work. |
| *not hiring you,
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| *not promoting you,
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| *firing you, or
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| *discriminating in some other way against you in your job.
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| The protected ground does not need to be the only or main reason for a decision or action by an employer. It is discrimination if the ground is a factor in the decision or action. For example, if you weren’t hired in part because of your religion or sex, that’s discrimination.
| | This means an employer cannot factor a protected characteristic into:<br> |
| | * not hiring you |
| | * not promoting you |
| | * firing you |
| | * discriminating against you in some other way in your job |
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| The protection includes the workplace environment. Employers must provide a discrimination-free workplace. They may be liable for discrimination, including harassment, by their workers in the workplace. | | The protected characteristic does not need to be the only or main reason for a decision or action by an employer. It’s discrimination if the characteristic is a factor in your treatment. For example, if you weren’t hired in part because of your religion or sex, that’s discrimination. |
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| ====Examples of job discrimination====
| | Employers must provide a discrimination-free workplace. They may be liable for discrimination, including harassment, by their workers in the workplace. |
| Examples of job discrimination include an employer:
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| *turning down a woman for a job featuring physical labour, believing only men are qualified for that type of work
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| *changing a term of the job to interfere with a worker’s parental or family duty
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| *changing a term of the job to interfere with a worker’s religious beliefs
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| *harassing (or letting other workers harass) a worker over their race, religion, sex or other protected ground
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| *requiring a worker with a drug addiction to undergo drug testing (unless the employer can justify the testing)
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| *failing to take reasonable steps to accommodate a deaf employee
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| *firing a worker because of a mental or physical disability
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| ===The employer’s duty to accommodate=== | | ===What workplace discrimination can look like=== |
| 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.
| | Discrimination at work can take many forms. It can be '''direct'''. This is where you’re treated differently in the workplace because of a protected characteristic, and you suffer harm. |
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| ====To the point of undue hardship====
| | For example:<br> |
| The employer’s duty to accommodate isn’t limitless. It extends only to the point where the accommodation starts causing the employer “'''undue hardship'''”.
| | * an employer doesn’t hire a person for a job because they’re transgender |
| | * co-workers harass a worker over their race, religion, sex or other protected characteristic (harassment is conduct a reasonable person would consider objectionable or unwelcome) |
| | * an employer fires a worker because she’s pregnant |
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| Many human rights cases involve complaints that an employer has not accommodated a worker’s disability. The ''Human Rights Code'' does not define disability. Cases have said a disability is involuntary, is somewhat permanent, and impairs a person's ability to carry out the normal functions of life. Accommodation requires an employer and a worker (''and'' a worker’s union, if they are in one) to find a practical solution to accommodate the worker’s disability 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.
| | Discrimination can also be '''indirect'''. This is trickier to spot. Here, you’re treated the same as your co-workers, but you’re still disadvantaged by a protected characteristic. This is usually because of a workplace rule or practice. |
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| ===An exception for a “bona fide occupational requirement”===
| | For example, say you follow a religion that requires you to wear a head covering. Your employer has a rule prohibiting workers from wearing anything on their heads. The rule applies to everyone at work, so in that way it seems fair. But it hits you harder than your colleagues because head-covering has another level of meaning for you. |
| An employer may be able to make a decision (such as refusing to hire or promote you) that appears to be discriminatory if they can show the decision was based on a '''bona fide occupational requirement'''. Such a 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 female cleaner, but if the job involved cleaning after hours, it probably could not limit the job to women.
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| ===The protection extends to union membership, employment agencies, and job ads=== | | ===The employer’s duty to accommodate=== |
| A '''trade union, employers' organization or occupational association''' can’t discriminate against you. For example, a union can’t use any of the protected grounds in the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec14_smooth Human Rights Code]'' to stop you from joining the union, to expel or suspend you, or otherwise discriminate against you.
| | If you’re disadvantaged at work because of a protected characteristic, your employer has a '''duty to accommodat'''e you. |
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| An '''employment agency''' can’t refuse to refer you for employment based on a protected ground.
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| As well, under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec11_smooth the Code], the protection extends to '''job ads'''. Employers cannot advertise in connection with a job a limitation, specification, or preference based on a protected ground. The exception is if the limitation, specification, or preference is based on a bona fide job requirement. Job ads should describe the job and the necessary skills and training, not a certain type of person.
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| ===If someone discriminates against you===
| | For example, a person with a disability may not be able to perform a certain part of their job because of their disability. The employer must take reasonable steps to accommodate the disability and support the worker to do the job. For more on this, [https://www.peopleslawschool.ca/everyday-legal-problems/work/rights-work/your-employer%E2%80%99s-duty-accommodate-you see our information on an employer’s duty to accommodate]. |
| If someone discriminates against you in the workplace, you have options.
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| ====Option 1. Make a human rights complaint==== | | ===An exception for a bona fide occupational requirement=== |
| You can '''make a complaint''' to the BC Human Rights Tribunal. The tribunal deals with complaints under the ''[http://canlii.ca/t/843q 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.
| | An employer has one main legal defence against a worker’s claim of workplace discrimination. An employer can try to justify a rule or practice that appears to be discriminatory by showing it is based on a '''bona fide occupational requirement'''. |
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| You must file a complaint with the tribunal within '''one year''' of when the discrimination happened. You can get a complaint form from the tribunal’s website at [http://www.bchrt.gov.bc.ca/complaint-process/complain/file.htm bchrt.bc.ca] or by calling 604-775-2000 in Vancouver or 1-888-440-8844 elsewhere in BC. Our information on [[Human Rights and Discrimination Protection (No. 236)|human rights and discrimination protection (no. 236)]] explains the steps in making a human rights complaint. We explain what to expect from the process shortly.
| | To use this defence, an employer must show that:<br> |
| | * the rule or practice has a purpose legitimately connected to the performance of the job, and |
| | * they acted in good faith, believing the rule or practice was necessary to achieve the purpose, and |
| | * the needs of the person discriminated against cannot be accommodated without the employer experiencing undue hardship. |
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| ====Option 2. Complain to the Employment Standards Branch==== | | ==Options for action== |
| If your employer didn’t follow the ''[http://canlii.ca/t/8405 Employment Standards Act]'', you can '''make a complaint''' to the Employment Standards Branch, the government office that administers that Act. It covers some situations that can also bring the ''Human Rights Code'' into play. For example, under the ''Employment Standards Act'', an employer cannot fire you because you are pregnant. The Employment Standards Branch has different powers than does the Human Rights Tribunal. See our information on [[If You Are Fired: Wrongful Dismissal (No. 241)|if you are fired (no. 241)]] for more details on making a complaint to the Branch.
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| ====Option 3. Sue for wrongful dismissal==== | | ===Make a human rights complaint=== |
| If you lose your job because of discrimination, you may decide to sue in court for '''wrongful dismissal'''. You may be able to recover more in damages than in a human rights complaint. On the other hand, bringing a lawsuit is an involved and expensive process. See our information on [[If You Are Fired: Wrongful Dismissal (No. 241)|if you are fired (no. 241)]] and [[Starting a Lawsuit (No. 165)|starting a lawsuit (no. 165)]] for more details.
| | You can make a '''human rights complaint'''. The BC Human Rights Tribunal deals with complaints under the BC ''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. |
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| ====Option 4. If you belong to a union====
| | If the tribunal decides your complaint is justified, it can order the employer or other person to stop discriminating. It can order that you get your job back, or be given the right to compete for a job. The tribunal can also award you money for lost income and for injury to your dignity, feelings, and self-respect. |
| If you belong to a union, one option is to ask the union to file a '''grievance''' about the discrimination.
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| {| class="wikitable"
| | If you decide to bring a human rights complaint, you must file it with the tribunal within '''one year''' of when the discrimination happened. We explain the steps involved. [https://www.peopleslawschool.ca/human-rights-complaint/ See our in-depth coverage of making a human rights complaint]. |
| |align="left"|'''Tip'''
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| 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)|free and low-cost legal help (no. 430)]]. | |
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| ===If you make a human rights complaint=== | | ===Make an employment standards complaint=== |
| If you make a complaint to the BC Human Rights Tribunal, 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 protected grounds was at least a factor in the adverse impact. | | If your employer didn’t follow the ''Employment Standards Act'', you can '''make an employment standards complaint'''. You must file your complaint within six months of your last day of employment. |
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| If you show that, the employer can try to prove their conduct was '''justified''' (a bona fide occupational requirement).
| | However, if you go this route you’ll only be able to claim whatever severance pay your employer owes you. You won’t be able to get compensation for discrimination. And if you choose this option, you could be barred from starting a human rights complaint. |
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| ====The tribunal considers your complaint====
| | We have information on the steps involved. See [https://www.peopleslawschool.ca/everyday-legal-problems/work/dealing-problem-work/making-employment-standards-complaint making an employment standards complaint]. |
| If it finds the complaint may involve a violation of the ''Human Rights 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.
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| ====Possible awards==== | | ===Sue for wrongful dismissal=== |
| If the tribunal decides your complaint is justified, it can order the employer or other person to stop discriminating and give you your job back. Or it can order them to give you the right to compete for a job. | | If you lose your job because of discrimination, you may decide to sue for '''wrongful dismissal'''. You must bring your claim within two years of being dismissed from your job. |
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| The tribunal can also order the employer or other person to pay you money ('''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.
| | But the court can only award you damages for your lost wages; it can’t award extra damages to compensate you for the discrimination. You’re likely to collect more if you file a human rights complaint, because you can get damages for lost wages as well as discrimination. |
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| {| class="wikitable"
| | ===If you belong to a union=== |
| |align="left"|'''Tip'''
| | If you belong to a union, one option is to ask the union to file a '''grievance''' about the discrimination. If your union refuses to file a grievance on your behalf, you may be able to file a complaint against your union for failing to represent you fairly. This complaint is called a '''section 12 complaint''' and is filed with the BC Labour Relations Board. |
| Write down anything the employer says or does that may be discriminatory. Keep your written record — it may be useful evidence later.
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| ==Common questions== | | ===If you bring a human rights complaint=== |
| | If you make a human rights complaint and also pursue another option, the tribunal can wait until the other process is finished before dealing with your complaint. If the tribunal finds that the other process adequately addressed the issue, the tribunal may decide not to hear your complaint. |
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| ===In a job interview, I was asked about my religious beliefs. Is that allowed?===
| | It’s a good idea to seek legal advice on your options. [https://www.peopleslawschool.ca/everyday-legal-problems/resolving-disputes/legal-help-lawyers/options-legal-help There is free and low-cost legal help available]. |
| In a job interview, you can be asked about “protected ground” characteristics as long as the questions aren’t discriminatory. This will depend on the context. For example, you may be asked, as a casual icebreaker, where you’re from. But this question can’t be part of the formal interview.
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| ===Are men and women supposed to get the same pay for similar work?=== | | ==Who can help== |
| 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 pay different wages to different people based on seniority, merit, and productivity.
| | ===Helpful agencies=== |
| | Consider reaching out to these agencies for help if you experience discrimination at work. |
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| ===If there a mandatory retirement age in BC?===
| | :'''BC Human Rights Tribunal''' |
| No. The ''Human Rights Code'' protects all people 19 and over from discrimination because of their age. Among other things, this means you cannot be forced to retire because of your age. The exception is where an employer can show that an age limit is a bona fide occupational requirement, because of the duties or needs of the work or because of safety issues or dangers.
| | :Receives and resolves discrimination complaints under BC law. |
| | :Call 1-888-440-8844 |
| | :[https://www.bchrt.bc.ca/ Visit website] |
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| ===Can an employer make me give up my rights under the ''Human Rights Code''?===
| | :'''BC Human Rights Clinic''' |
| 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.
| | :Provides free assistance and representation to those who qualify for help with a discrimination complaint under BC law. |
| | :Call 1-855-685-6222 |
| | :[https://bchrc.net/ Visit website] |
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| ===Are there time limits for filing a human rights complaint or suing?===
| | :'''Canadian Human Rights Commission''' |
| Yes, there are time limits in both cases. You have one year from when the discrimination occurs to file a complaint with the Human Rights Tribunal. 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. There are also time limits for suing in court — see our information on [[Starting a Lawsuit (No. 165)|starting a lawsuit (no. 165)]] for details.
| | :Deals with discrimination complaints under federal human rights law. |
| | :Call 1-888-214-1090 |
| | :[https://www.chrc-ccdp.gc.ca/ Visit website] |
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| ==Get help==
| | :'''Labour Relations Board''' |
| | :May be able to help if your union has refused to file a grievance for you. |
| | :Call 1-604-660-1304 |
| | :[https://www.lrb.bc.ca/ Visit website] |
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| ===With a discrimination complaint=== | | ===Legal advice=== |
| 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).
| | :'''Lawyer Referral Service''' |
| :Telephone: 604-622-1100 in Vancouver | | :Helps you connect with a lawyer for a complimentary 15-minute consult to see if you want to hire them. |
| :Toll-free: 1-855-685-6222
| | :Call 1-800-663-1919 |
| :Web: [https://www.bchrc.net bchrc.net]
| | :[https://www.accessprobono.ca/our-programs/lawyer-referral-service Visit website] |
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| In the Greater Victoria area, the '''University of Victoria Law Centre''' provides help for eligible human rights complainants and respondents.
| | :'''Access Pro Bono's Free Legal Advice''' |
| :Telephone: 250-385-1221 | | :Volunteer lawyers provide 30 minutes of free legal advice to people with low or modest income. |
| :Web: [http://thelawcentre.ca/ thelawcentre.ca]
| | :Call 1-877-762-6664 |
| | :[https://www.accessprobono.ca/get-legal-help Visit website] |
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| | :'''People’s Law School''' |
| | :See more options for free or low-cost legal help. |
| | :[https://www.peopleslawschool.ca/options-legal-help/?utm_source=beagle Visit website] |
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