Protected Characteristics
Which protected characteristics are not protected under all areas of the Code?
Bonus points for identifying which areas for each protected characteristic.
Scenario 4:
My name in Jin and I work for an contracting company.
One of our new employees seems like they are struggling with the work. They are great, and I want to support them in a good way. The problem is, they have not told me why they are struggling (I think it is related to a disability)
I want to ask them if they need an accommodation but don't want to hurt their feelings. Also, what "evidence" am I able to ask for when assessing an accommodation for them? I know my boss will ask me for this information.
Would a single discriminatory comment violate the Human Rights Code?
A single comment may not violate the Human Rights Code. It will depend on the circumstances.
The Human Rights Code aims to allow people to take part in the protected areas fully and with dignity. Does the comment get in the way of this?
If not, the comment may be rude and disrespectful. But it won't violate the Code.
In this case, it may be considered bullying and there are other protections from this. For example, your collective agreement if you are part of a Union.
Is there a timeframe for someone to make a complaint after leaving employment?
If a complainant wins their case and seek money as a remedy, how does the BCHRT determine how much they will receive?
Depends on the following
1. The discrimination (What happened, details, how long, how often)
2. Complainant vulnerability (ie. power dynamics, age, disability)
3. Effect on complainant (feelings, details such as crying or confidence loss, health and medical information)
Why are certain protected characteristics not protected under all Code areas?
Why certain characteristics are included or not under certain areas is a decision of the legislature.
The legislature makes these choices for policy reasons.
Would a migrant family be able to make a human rights complaint if a landlord asks for their immigration status in order to rent to them?
Maybe.
Scenario 2
My name is Sunny and both of my kids play competitive hockey and it's a very important part of their life and also our life as a family. Our family has chosen not to get vaccinated.
The hockey association is requiring proof of vaccination to be in the rink as a spectator AND for all players over 12.
What are my rights?
It is our understanding that the PHO's order does not apply to skating rinks (except if they are being used for adult sports).
It may be that your hockey association is putting in place a policy separate from the PHO's order because it believes it is necessary to lower the risk of transmission of Covid-19.
In terms of your rights… consider the 3 part test for discrimination under The Code?
Have you or your kids experienced an adverse impact because and is a protected characteristic a factor in that adverse impact. If so, you may wish to connect with a lawyer.
Scenario 3
My name is Todd and I want to volunteer on the board of directors for this organization in my town that supports Indigenous entrepreneurs and business.
It's not-for-profit, and I really think I'd be valuable (not to mention it would look good on my college resume)
They said they only accept Indigenous peoples on their board of directors.
Is that not discrimination on the basis of race?
The BC Human Rights Code allows some non-profit groups to make distinctions that would otherwise be discrimination. Generally, a non-profit organization can give preference to members of a group whose interests are being advanced by the organization.
There are four requirements for a non-profit group to be exempted from the Code.
1. Type of organization
The organization must be a charitable, philanthropic, educational, fraternal, religious, or social organization.
3. Primary purpose in relation to a group or class
The organization's primary purpose must be the promotion of the interests and welfare of an identifiable group or class of persons.
4. Good faith and rational connection between preference and work or purpose
The organization may grant a preference to a member of that group or class, if it does so in good faith and there is a rational connection between the preference and the organization's work or purpose.
BCHRT Rules that: A society for the welfare and advancement of aboriginal people was allowed to prefer aboriginal applicants for its post of executive director, as the post involved sitting on the boards of other aboriginal organizations.
If the complainant wins their case, how much does the Tribunal usually order the respondent to pay?
In the ten years from 2009 to 2019:
The awards have been increasing over time.
From 2015 to 2019, 31% of the orders were $5,000 or less, while 22% were over $20,000.
Only two awards have been over $50,000.
BCOHRC is seeking to add Indigeneity into the Human Rights Code. Would Indigeneity not be covered by race or ancestry.
Yes.
We know from data that Indigenous people are overrepresented in facing discriminatory practices; employment, housing and services.
Yet, Indigenous people are less likely to pursue remedies or be successful in pursuing remedies through the BC Human Rights System.
One reason could be, because Indigenous people do not see themselves represented in the Human Rights Code.
Is housing that is advertised as "55+" (or similar) not discrimination by age?
Do employees have the duty to disclose an accommodation need prior to accepting a position?
I don't think an employee has the duty to disclose any information.
It is the employer's duty to accommodate them and disclosing beforehand could put them at risk of being discriminated against.
Extra thought:
However, there may be extreme situations where it would not make sense to not disclose and undue hardship would be found easily (someone who accepts a job as a truck driver and then tells the company he's recently become blind and can't drive anymore).
I'm Indigenous, if I want to make a human rights complaint when would I file through:
- the Canadian Human Rights Act or
- BC Human Rights Code?
Depends who you want to complain about. What level of government regulates the duty bearer determines jurisdiction.
What would a workplace discrimination complaint for racism look like?
If someone was the victim of discriminatory speech by a colleague or employer, what protects them?
Speech that may be the basis of a workplace discrimination complaint, is where a comment or series of comments poisons a work environment for an employee of colour.
Where people make racist “jokes”, call someone a racist nickname, or make comments about “those people”.
None of these things, together or separately, are likely to be hate speech but may amount to discrimination on the basis of race, in employment.
This may be covered under the BC Human Rights Code.
If the discriminatory language is extreme, it may meet the test for hate speech
Is doing drugs or smoking weed considered a personal characteristic?
Hint: Consider addictions or substance abuse disorder
Addictions or substance use disorders are disabilities under the Code.
If someone is doing drugs or smoking weed as a result of an addiction (or as treatment for an addiction) they are likely protected.
If there is any dispute about whether someone is using substances because of a substances use disorder or whether it is purely recreational, it will be up to the complainant (or rights holder) to prove that they do, in fact, have a substance use disorder.
Would cooperative living fall under the home ownership area even though they do not own their unit?
Hint: 2 Part answer. Equity co-ops and non-profit housing,
Can employers require mandatory vaccines?
As we understand it the Provincial vaccine mandate does not apply to employees.
The order applies to customers, not employees.
If your employer is implementing a separate vaccine policy for employees we suggest you take a look at our Office’s policy guidance on proof of vaccination policies and perhaps suggest your employer do the same.
If your employer continues to say it cannot accommodate you, we suggest you get legal advice from a lawyer experienced in employment and human rights law about your options.
Name 5 federally regulated workplaces
Federal government departments, agencies and Crown corporations;
The RCMP;
Chartered banks;
Airlines;
Interprovincial transportation companies;
Television and radio stations;
Interprovincial communications, telephone and transportation companies;
First Nations governments and some other First Nations organizations.
Hate speech (verbal or written) provokes extreme ill-will that goes beyond dislike and must be worse than “merely offensive.
Can you expand on this explanation. How is hate speech defined?
It must be speech that is likely to expose those targeted to “detestation and vilification”.
Hate speech tries to delegitimize the targeted group as unworthy, useless or inferior.
It is speech that, for example, tries to convince the audience that the group is lawless, dangerous, unworthy or unacceptable.
Hate speech can include blaming the group for social problems like crime and disease, comparing them to animals, or accusing them of conspiracies to gain global control.
Courts and tribunals call these themes that often appear in hate speech “the hallmarks of hate”
How do we navigate overlapping rights? What if a person’s political or religious beliefs lead them to make discriminatory comments about other protected classes
This question engages the often very difficult tension between freedom of expression—which is a Charter-protected right—and other rights either under the Charter or under the Code itself.
If a complainant proves that the respondent’s conduct had a negative effect on them regarding a strata’s services, and that a personal characteristic was a factor in the negative effect how may a strata prove their conduct was not discriminatory.
I'm a volunteer. Do I have the right to be free from discrimination?
It depends on the volunteer work that you do. A volunteer may be considered an employee, even though they are not paid for their work. Employees are protected against discrimination in their employment. The following factors may help to tell if a volunteer is an employee:
During the Pandemic many businesses has asked folks to pay by card only and do not accept cash. Would this not be discrimination against vulnerable populations who cannot afford a credit card or debit card and rely on cash interactions.
Scenario 2
My name is Lynn and I own a Business and am religious. My religion says that other religions are false by the word of my God.
I feel that I should be free to voice my opinions to anyone, but fear that my employees will say that I am discriminating against them if they are a different religion.
Am I not protected through Freedom of Speech?