Difference between revisions of "Protection Against Job Discrimination"

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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.


{{Dial-A-Law TOC|expanded = employment}}
==What you should know==
The BC ''[http://http://www.bclaws.ca/civix/document/id/complete/statreg/96210_01 Human Rights Code]'' prohibits discrimination in employment. The [http://www.bchrt.bc.ca/ 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:
===Which human rights laws apply in your workplace===
*[[Human Rights and Discrimination Protection (Script 236)|236]], called “Human Rights and Discrimination Protection”
There are provincial and federal human rights laws that protect workers from discrimination in the workplace.
*[[Sexual Harassment (Script 271)|271]], called “Sexual Harassment”


==Protection against discrimination in your job==
The BC ''Human Rights Code'' applies to most workplaces in the province. This information focuses on this law.
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 [http://laws.justice.gc.ca/eng/acts/H-6/ 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 [http://www.chrc-ccdp.ca/ 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.
Federal human rights law applies to some workplaces, including those in federally-regulated industries (such as banking and telecommunications).


==What protection does BC law give?==
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.
The BC ''Human Rights Code'' makes it illegal for employers 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
*sexual orientation
*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.
===You are protected against discrimination in the workplace===
The law protects you from discrimination at work. An employer must not discriminate against you based on certain parts of your identity.


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.
These are:<br>
* your race, colour, ancestry, or where you’re from
* your Indigenous identity
* your sex, sexual orientation, or gender identity or expression
* your age
* any physical or mental disability
* your marital or family status
* your religion or political belief
* any criminal convictions that are unrelated to the job


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


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.
===This protection applies in all aspects of employment===
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.


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 bona fide or legitimate occupational requirements. A bona fide occupational requirement is a legitimate job-related qualification where the employer cannot accommodate the protected characteristics 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 it to females.
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


==Does the Code cover job ads?==
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.
Yes. Employers cannot advertise a preference, specification, or limitation based on the grounds in the Code, unless it’s a bona fide occupational 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—taking into account 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?==
Employers must provide a discrimination-free workplace. They may be liable for discrimination, including harassment, by their workers in the workplace.
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?
===What workplace discrimination can look like===
Mandatory retirement is prohibited in BC (with exceptions for legitimate job requirements). More on this is available on the [http://www.ag.gov.bc.ca/mandatory-retirement/ BC Ministry of Justice website].
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.


==What are some examples of discrimination in employment?==
For example:<br>
Typical examples of job discrimination include an employer:
* an employer doesn’t hire a person for a job because they’re transgender
*changing a term or condition of employment that interferes with an employee’s religious beliefs.
* 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)
*changing a term or condition of employment that interferes with a substantial parental or family duty.
* an employer fires a worker because she’s pregnant
*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 [[Sexual Harassment (Script 271)|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?==
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.
File a complaint with the [http://www.bchrt.bc.ca/ 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 [[Human Rights and Discrimination Protection (Script 236)|236]], called “Human Rights and Discrimination Protection”).


You have to show that the employer’s conduct (or the conduct of another employee) 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 has to 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 on.
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.


The Tribunal will review your complaint and if it determines that the complaint may be a violation of the Code, the Tribunal will ask the employer to reply to your complaint. The Tribunal can attempt 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 to stop discriminating and give you your job back, or give you the right to compete for a job. It can also order the employer to pay you money—called compensation—for lost income (including wages and disability and other benefits) and expenses. The Tribunal can also order the person or business that discriminated 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, over $30.000.
===The employer’s duty to accommodate===
If you’re disadvantaged at work because of a protected characteristic, your employer has a '''duty to accommodat'''e you.


==Do you need help filing a complaint with the Tribunal?==
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].
The [http://www.bchrcoalition.org/files/services_a.html 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 a project of the [http://www.bchrcoalition.org/ BC Human Rights Coalition] and the [http://www.clasbc.net/ Community Legal Assistance Society]. Call the Coalition at 604.689.8474 in Vancouver or 1.877.689.8474 elsewhere in BC.


==Do you belong to a union?==
===An exception for a bona fide occupational requirement===
If you belong to a union, ask the union to file a grievance about the discrimination by your employer. If the union refuses to file a grievance on your behalf, 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.
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'''.


==Does the ''Employment Standards Act'' cover your case?==
To use this defence, an employer must show that:<br>
The ''Employment Standards Act'' covers some of the same situations as the ''Human Rights Code''. But the [http://www.labour.gov.bc.ca/esb/ 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 [[Termination Under the BC ''Employment Standards Act'' (Script 280)|280]], called “Termination under the BC ''Employment Standards Act''”, for more information. It explains how to file a complaint with the Branch.
* 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.


==Can you sue for wrongful dismissal?==
==Options for action==
If you lose your job because of discrimination, you may also be able to sue in court for wrongful dismissal. Check script [[If You're Fired - Wrongful Dismissal (Script 241)|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?==
===Make a human rights complaint===
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.
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.


==Are there time limits for filing a complaint or suing?==
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.
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.
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].


==Can an employer make you give up your rights under the ''Human Rights Code''?==
===Make an employment standards complaint===
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.
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.


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.


[updated July 2014]
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].


===Sue for wrongful dismissal===
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.


----
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.
----


===If 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. 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.


===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.
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].
==Who can help==
===Helpful agencies===
Consider reaching out to these agencies for help if you experience discrimination at work.
:'''BC Human Rights Tribunal'''
:Receives and resolves discrimination complaints under BC law.
:Call 1-888-440-8844
:[https://www.bchrt.bc.ca/ Visit website]
:'''BC Human Rights Clinic'''
: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]
:'''Canadian Human Rights Commission'''
:Deals with discrimination complaints under federal human rights law.
:Call 1-888-214-1090
:[https://www.chrc-ccdp.gc.ca/ Visit website]
:'''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]
===Legal advice===
:'''Lawyer Referral Service'''
:Helps you connect with a lawyer for a complimentary 15-minute consult to see if you want to hire them.
:Call 1-800-663-1919
:[https://www.accessprobono.ca/our-programs/lawyer-referral-service Visit website]
:'''Access Pro Bono's Free Legal Advice'''
:Volunteer lawyers provide 30 minutes of free legal advice to people with low or modest income.
:Call 1-877-762-6664
:[https://www.accessprobono.ca/get-legal-help Visit website]
:'''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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Latest revision as of 05:53, 14 November 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Sara Hanson, Moore Edgar Lyster LLP in November 2022.
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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.

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.

The BC Human Rights Code applies to most workplaces in the province. This information focuses on this law.

Federal human rights law applies to some workplaces, including those in federally-regulated industries (such as banking and telecommunications).

If your situation involves federal law, or you think it might, you can contact the Canadian Human Rights Commission. See their website. They can point you to information on federal human rights law.

You are protected against discrimination in the workplace

The law protects you from discrimination at work. An employer must not discriminate against you based on certain parts of your identity.

These are:

  • your race, colour, ancestry, or where you’re from
  • your Indigenous identity
  • your sex, sexual orientation, or gender identity or expression
  • your age
  • any physical or mental disability
  • your marital or family status
  • your religion or political belief
  • any criminal convictions that are unrelated to the job

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.

This protection applies in all aspects of employment

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.

This means an employer cannot factor a protected characteristic into:

  • not hiring you
  • not promoting you
  • firing you
  • discriminating against you in some other way in your job

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.

Employers must provide a discrimination-free workplace. They may be liable for discrimination, including harassment, by their workers in the workplace.

What workplace discrimination can look like

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.

For example:

  • 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

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.

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.

The employer’s duty to accommodate

If you’re disadvantaged at work because of a protected characteristic, your employer has a duty to accommodate 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, see our information on an employer’s duty to accommodate.

An exception for a bona fide occupational requirement

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.

To use this defence, an employer must show that:

  • 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.

Options for action

Make a human rights complaint

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.

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 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. See our in-depth coverage of making a human rights complaint.

Make an employment standards complaint

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.

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.

We have information on the steps involved. See making an employment standards complaint.

Sue for wrongful dismissal

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.

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.

If 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. 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.

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.

It’s a good idea to seek legal advice on your options. There is free and low-cost legal help available.

Who can help

Helpful agencies

Consider reaching out to these agencies for help if you experience discrimination at work.

BC Human Rights Tribunal
Receives and resolves discrimination complaints under BC law.
Call 1-888-440-8844
Visit website
BC Human Rights Clinic
Provides free assistance and representation to those who qualify for help with a discrimination complaint under BC law.
Call 1-855-685-6222
Visit website
Canadian Human Rights Commission
Deals with discrimination complaints under federal human rights law.
Call 1-888-214-1090
Visit website
Labour Relations Board
May be able to help if your union has refused to file a grievance for you.
Call 1-604-660-1304
Visit website

Legal advice

Lawyer Referral Service
Helps you connect with a lawyer for a complimentary 15-minute consult to see if you want to hire them.
Call 1-800-663-1919
Visit website
Access Pro Bono's Free Legal Advice
Volunteer lawyers provide 30 minutes of free legal advice to people with low or modest income.
Call 1-877-762-6664
Visit website
People’s Law School
See more options for free or low-cost legal help.
Visit website
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