Code Workshop Jeopardy

Protected Characteristics

100

Which protected characteristics are not protected under all areas of the Code?

Bonus points for identifying which areas for each protected characteristic.

1. Family Status (purchase of property)
2. Political Belief (public services, purchase or property, tenancy)
3. Age (purchase of property)
4. Source of Income (Employment, services, purchase of property)
5. criminal conviction (service, purchase of property, tenancy)

200

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.

300

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.

400

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.

500

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.

• In general, privately held political or religious beliefs do not provide a justification for discrimination in the form of speech in an area where     the Human Rights Code operates.
• it is well recognized that what we often call "fundamental" rights are always subject to reasonable limits; this includes freedom of expression.  
• The Supreme Court of Canada has said that the laws prohibiting hate speech in the Criminal Code and in the Human Rights Code are reasonable limits on Canadians' right to free expression.

Housing

100

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.

• It is important to consider how best to communicate with that specific employee in a sensitive, but clear way.
• Consider things like who might best talk to the employee (who do they trust), when and how.
• But if you think the employee may need an accommodation it is your responsibility to figure out how to have that conversation and get the information you need
• Generally, the information  someone is going to be expected to provide is limited to what a duty    bearer requires in order to confirm the need for an accommodation
• And in all cases the duty bearer should ask for only what they actually require and they must share it with the fewest possible people necessary to meet the individual's accommodation needs.

200

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.

• Generally speaking though, Immigration status  is not a protected characteristic under the Code at this time.
• BUT - and this is a really important but - there may be a sufficient connection between the family's immigration status and their race, ancestry, or place of origin to form the basis of a complaint.
• Race, ancestry, and place of origin, are all protected characteristics under the Code. 

300

Is housing that is advertised as "55+" (or similar) not discrimination by age? 

• There are some exceptions to the tenancy provisions in the Code
• One of those exceptions relates to people 55 and older, where all the units are reserved for that age group
• If you want to learn more, you can take a look at s. 10 of the Code, which deals with tenancy

400

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,

• It depends on what kind of co-op it is. Most commonly in BC when we talk about co-ops, we are talking about non-profit co-ops but there are also some "equity co-ops" in the province.
• Equity co-ops, are treated like stratas under the Code as they provide services to their members. So complaints about them are made under s. 8 of the Code (services).
• Non-profit housing co-ops are covered  under the tenancy section of the Code (s.10).

500

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. 

1. There is a legitimate business-related purpose for the respondent’s conduct
2. The respondent adopted the standard acted in good faith, believing the standard or conduct is necessary to achieving its purpose 
3. The respondent’s standard or conduct is reasonably necessary to its service-related purpose, such that the respondent could not accommodate the complainant (or others sharing their characteristics) without undue hardship
   
   

Employment

100

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.

200

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.

300

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).

400

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. 

500

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:

• Does the organization have a formal process to recruit volunteers?
• Is there a training process with defined tasks?
• Do volunteers have to agree to follow the organization's policies and practices?
• Are there requirements about when or how much a volunteer must be available?
• What is the role of volunteers in the organization?

Jurisdiction

100

Is there a timeframe for someone to make a complaint after leaving employment? 

• Yes, within 1 year from the date of the alleged discrimination
• If the discrimination is ongoing it may be a continuing contravention of the Code.
• Complaints must be filed within 1 year of the last alleged instance of discrimination

200

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.

300

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. 

1. Band  Councils – federally regulated – CHRA
2. Grocery store on reserve –  provincially regulated – BCHRC
3. Ministry of Children and     Families – provincially regulated – BCHRC
4. Off reserve service (medical clinic for example) for an on-reserve person – provincially regulated – BCHRC
5. Bank – on or off reserve – federally regulated – so CHRA

400

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.

500

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.

• If a business is ordinarily available to the public then it falls under the area of services, which is an area of daily life covered by the Code
• Social condition is not a protected characteristic under the Code (yet)
• However, if someone can prove a group that they belong to are more likely to be low income or experiencing poverty AND that group has a characteristic protected under the Code.
• They may have a basis for case under the Code, arguing that as a homeless person who is a member of another protected group (that is more likely to be poor or  homeless), insisting they pay by cash is discriminatory.

Random

100

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)

200

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:

• 44% of the orders made are $5,000 or less
• 32% of the orders made are from $5,001 to $10,000
• 13% of the orders made are from $10,001 to $20,000
• 11% of the orders made are over $20,000

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.

300

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

400

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”

500

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?

• From a constitutional perspective:
  • Freedom of speech does not guarantee a platform for that speech. For example, just because you can say what you want (within the other limits here) doesn’t mean that a social media platform or media outlet must host or publicize what you are saying.
  • Freedom of religion does not guarantee an ability to create exclusionary institutions 
  • Freedom of speech, freedom of religion and certain other constitutionally protected rights are not without limitation. These rights are subject to reasonable limits that are prescribed by law and demonstrably justifiable in a free and democratic society 
• From a human rights statute perspective:
  • There are no protections for religion freedom or freedom of speech. There are, however, equality protections for people of faith – e.g. you cannot be discriminated against on the basis of your religion.
  • Freedom of religion and religious equality are different protections – the latter is focussed less on the ability to exercise one’s religious beliefs and more on whether you are suffering adverse treatment because of your religion.
  • Religious equality is not without limitation here either. For example, if you work at an abortion clinic, it is likely a bona fide occupational requirement that you enact pro choice behaviour to enable clients to access abortion services.