The BC Human Rights Code protects the fundamental human rights of everyone in British Columbia. The Code prohibits discrimination against people who possess characteristics (or are perceived to possess characteristics) that fall into a prohibited ground of discrimination. In this respect, the Human Rights Code prohibits employers from discriminating in their advertisement for positions, hiring, during the course of their employment, and refusing to continue to employ a person because of a person’s:
• place of origin;
• marital status;
• family status;
• physical or mental disability;
• sex (including pregnancy and breastfeeding);
• sexual orientation;
• age (19 and over);
• criminal conviction unrelated to the employment; and
• political belief
What is discrimination?
Discrimination means any adverse treatment, and ranges from passing over a candidate for employment to dismissing an employee. A policy can be discriminatory in its effect, if it is applied to everyone equally but has a particularly adverse effect on a certain class of employee. For example, a policy that required all office workers to file certain documents in the top drawer of a five-foot-tall filing cabinet would adversely affect those workers who used wheelchairs.
As another example, if an employer decides to dismiss an employee, has full-time and part-time employees to choose between, and chooses a part-time employee, this would not normally constitute discrimination under human rights law despite the fact that the employer is differentiating between candidates.
If the part-time employee chosen for dismissal happens to be pregnant, there is potential for a human rights claim for discriminating based on sex. The employer may have had a number of legitimate business reasons for dismissing the pregnant employee, but if even one of the reasons relates to her pregnancy, this would be unlawful discrimination.
Who can discriminate?
It is illegal to discriminate against a person based on a characteristic listed above. It does not matter whether the person doing the discriminating shares that characteristic – for example, it is illegal for gay men to discriminate against other gay men on the grounds that they are gay. It is also illegal to discriminate against a man on the basis that he is gay, even if he is not in fact gay. Furthermore, it is illegal to discriminate against a man for not being gay. If sexual orientation has anything to do with the discrimination, it is illegal – unless there is some legitimate business reason to discriminate on the grounds of sexual orientation, for example, where the employer provides counselling services to gay men, it may have a legitimate reason for specifically hiring gay counselors.
The truth is, every human falls into a protected class. We all have an age, a sex, a marital status, a place of origin. The difficulty for the employer is in recognizing where its business decisions will adversely impact certain employees for reasons relating to one of these grounds. As Human Rights Code complaints grow more numerous and monetary awards grow larger, it’s essential for employers and employees to be familiar with human rights and aware of when those rights are engaged.
Stephanie Korour is a student at law in the process of qualifying as a lawyer in BC. She obtained her LL.B. with Honours from the University of Buckingham.