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Discrimination by any other name, is still Discrimination

Jessica Gibson

Associate
August 24, 2022

What is Discrimination Generally?

It is important for both employees and employers to recognize how a finding of legitimate discrimination is determined by the British Columbia Human Rights Tribunal (the “Tribunal”). Particularly in the context of employment law, where there have been examples of employees suffering discrimination at work or termination of their employment under the veil of performance or personality issues.

Direct and Indirect Discrimination

Discrimination can take many forms, including “adverse effect” or “indirect” (or unintentional) discrimination. It is not necessary to prove a “causal” connection between a protected characteristic under the Human Rights Code, such as age, race, sexuality etc, and the discrimination. There simply must be a “connection”, or the protected characteristic must be a “factor” in the adverse treatment/discrimination.

Some examples of the different ways discrimination can happen include ‘indirect’ discrimination, where an otherwise neutral policy may have an adverse effect on certain groups. Such as an employer creating an office policy regarding uniforms that fails to consider peoples’ religious or gender status. There is no requirement to show that a person had a discriminatory intent in their action. There is also no requirement to prove stereotypical or arbitrary decision-making by the person who discriminated. The Tribunal is not interested in investigating the discriminatory attitudes of individuals. The focus within a human rights complaint is on whether there was a discriminatory impact on the person who was discriminated against. There must be a link or connection between the protected characteristic under the Human Rights Code and the adverse treatment/discrimination. The protected characteristic need only be “a factor” in the adverse treatment, not a “significant” factor or most prevalent factor.

Impacts of Discrimination

What often happens in legitimate cases of discrimination within the employment law context is that an employee either suffers a negative consequence at work, or their employment is terminated, and the reason given to the employee is that their performance was lacking or that they have a bad attitude. Employees in this case can often feel in their gut that they have been treated unfairly, but believe they have no recourse because their employer has given them what seems to be a legitimate reason to dismiss them.

Employees who work in discriminatory work environments deal with greater levels of stress and general discomfort that would not be present if they worked in a respectful and professional environment. Feeling psychologically unsafe will undoubtedly impact the quality and quantity of someone’s work. Some discriminatory employers use this decline in performance in employees as a reason to demote or terminate their employees’ employment.

What both employers and employees should be aware of is that the Tribunal is skilled at determining legitimate incidents of discrimination from illegitimate instances, whether they are labeled as performance issues or not. This is not to say that issues in an employee’s performance would not be considered by the Tribunal if there were a complaint made on the basis of a termination of employment, for example. It simply means the Tribunal will weigh the evidence accordingly to see if discrimination was a factor in the person’s dismissal.

It is important to know that if you feel that you have been treated unfairly due to a protected characteristic considered under the Human Rights Code, that you may have been subject to discrimination and have recourse before the Tribunal.

 

If you want to know more about the Tribunal process and your rights, reach out to a lawyer at Ascent Employment Law today.