Script 270 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
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, refer to 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, railawys, airlines and airports, phone and cable companies, and the federal government. If your case involves federal law, contact the Canadian Human Rights Commission at www.chrc-ccdp.ca and 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 (available at www.bclaws.ca) makes it illegal for employers to discriminate based on any of the following 16 things, called “grounds”:
- place of origin
- political belief
- marital status
- family status (this includes family obligations of one person to another, not just parent - child)
- physical disability, including HIV and AIDS
- mental disability
- sexual orientation
- age (if you are 19 years of age or older)
- criminal or summary convictions, and may extend to conduct / acts that did not result in a charge or conviction, as long as they are unrelated to the job
- lawful source of income (this one usually applies to tenancy, not job discrimination)
- retaliation (if someone discriminates against you because you complained to the Tribunal)
Discrimination includes decisions based only (or mainly) on the fact that you are in one of the protected classes (for example, you weren’t hired because of your religion or gender). This is called “direct” discrimination. But 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. This is called “indirect” discrimination. For example, a change in the employer's daily hours of operation might interfere with the ability of employees who are single parents to find suitable daycare for their children – the employer must make reasonable efforts to accommodate employees in those cases.
The Code protects you 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 16 grounds in the Code (except for convictions) to:
- fire you
- not hire you
- not promote you
- discriminate in some other way against you in your job
The same rules apply to employment agencies and unions – they 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. However, a potential employer, your current employer, or a union 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 occupational requirements. So a women’s health club could probably refuse to hire a male to clean the women’s locker rooms or a religious school could refuse to hire someone who is not a practicing member of their faith. These sorts of decisions would not be discrimination because the employer was relying on a “bona fide occupational requirement,” that is, a legitimate job-related qualification.
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 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?
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 Ministry of Justice website at www.ag.gov.bc.ca/mandatory-retirement.
What are some examples of discrimination in employment?
Typical examples of job discrimination include an employer:
- changing a term or condition of employment that results in the interference of an employee’s parental duties or their religious beliefs;
- turning down a woman for a construction job, believing that only men are qualified for that work;
- imposing special training requirements for graduates from schools based in certain countries – such requirements are fact specific;
- failing to take reasonable steps to accommodate an employee who uses a wheelchair;
- firing an employee because of a disability;
- harassing and/or other employees harassing an employee over their race, religion, sex or other prohibited ground. An employer is responsible for any discrimination or harassment done by employees. For sexual harassment refer to script 271;
- forcing an employee with AIDS or HIV to take a blood test. If an employer tests an employee for HIV or AIDS without that person’s consent, they can sue for assault. If an employee refuses a test, it shouldn’t affect their employment record. If it does, the person should seek legal advice right away. But employees of the Canadian Forces or the Department of National Defence may have to take an HIV test if they want to go in cooperative training programs in the United States.
What can you do if an employer discriminates against you?
File a complaint with the BC Human Rights Tribunal. For more information on this, see its website at www.bchrt.bc.ca or phone 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC (also, refer to script 236, called “Human rights and discrimination protection”).
You have to show that the employer treated you differently than other employees. If you show that, the employer has to show that you couldn’t perform the job. Write down anything the employer says or does that may be discriminatory. Keep your written record – it may be useful evidence later on.
The Tribunal will review your complaint, and if the Code covers it, ask the employer to reply to your complaint. It will try to help you and the employer settle it. If that’s 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 damages – 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 damages for injury to your dignity, feelings, and self respect – these damages can be up to $20,000, but most are between $2000 and $7000.
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 a project of the BC Human Rights Coalition and the Community Legal Assistance Society. For details, see the Coalition website at www.bchrcoalition.org or phone 604.689.8474 in Vancouver or 1.877.689.8474 elsewhere in BC.
Do you belong to a union?
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.
Does the Employment Standards Act cover your case?
The Employment Standards Act covers some discrimination cases. For example, under this law, an employer cannot fire you because you are pregnant. Refer to script 280, called “Termination under the Employment Standards Act,” for more information. It explains how to file a complaint with the Employment Standards 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. Refer to 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 Lawyer Referral at 604.687.3221 in the lower mainland and 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 November 2012]
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