Under the BC Human Rights Code, individuals are protected from discrimination against intrinsic personal characteristics, including but not limited to:
Gender identity or expression
Place of origin
How does this translate into employment law?
In a nutshell, employers need to make a reasonable effort to accommodate employees with diverse characteristics, during the hiring and/or dismissal process and throughout a working relationship.
What is Covered in the Workplace?
During a working relationship, an employer has a duty to accommodate the protected characteristics of all employees. Any failure to accommodate a protected characteristic (except when there is a legitimate reason that the employer cannot accommodate it) is considered discrimination.
What Does Workplace Discrimination Look Like?
It’s important to keep in mind that not every workplace dispute is discrimination, even if the “victim” in the dispute is someone with a certain protected characteristic. For discrimination to be found, there needs to be a connection between the protected characteristic and the negative treatment in the workplace.
For example, let’s say you’re a woman, and you’re fired by a male employer. That alone is not enough to claim gender-based discrimination. However, if you can show that your employer consistently gave you harsher feedback in performance reviews compared to your male colleagues, or that you were fired for something that you know a male colleague had previously done with minimal reprimand, then you might have a case for gender-based discrimination.
The same goes for any of the other protected characteristics. If, for example, you were the victim of bullying in the workplace, you can submit a complaint of bullying and harassment regardless of your characteristics. However, if the bullying was consistently targeted at a protected characteristic (for example, homophobic slurs directed at an openly gay employee) then this can be discrimination.
What is Not Covered?
Personal beliefs and opinions are not covered when it comes to employment law. You have the right to hold whatever beliefs or opinions you want, but those beliefs are not protected under human rights.
Case in point, the BC Human Rights Tribunal is currently experiencing a high volume of complaint submissions related to office masking and vaccination policies. While it is important to note that not all workplaces can legally require their employees to be vaccinated, having a vaccine mandate in place is not in and of itself a violation of human rights.
If you choose not to wear a mask or get vaccinated due to a personal belief or preference (and not due to a legitimate medical condition, such as an allergy to a vaccine ingredient), that is your choice. However, if your employer responds to this by requiring you to work remotely or otherwise restricting or suspending your access to facilities, this is not discrimination, because your choice to remain un-vaccinated is not a protected characteristic.
It’s important to keep in mind that human rights are designed to make society safer and more equitable for the majority of people. There is no one-size-fits-all solution, and sometimes we must make accommodations or accept minor inconveniences in order to protect the rights of others. The same is true in the workplace.
What Do Employers Need to Consider?
The main thing employers need to think about is how far they are able to go to accommodate a diversity of protected characteristics. An employer has a duty to create a safe and fair workplace for all employees, up to the point of undue hardship. Ergo, as an employer, you need to determine exactly what undue hardship means for your business.
In the context of employment law, hardship can be defined as added cost or impact on the general operations of the business or the wellness of its employees. The level of accommodation that a business can provide can depend on the size of the business, its industry, and what its day-to-day operations entail.
For example, if you are someone who uses a wheelchair, you might require a desk with particular dimensions. If you are coming into the office, the office building itself would need to be wheelchair accessible. This kind of accommodation may be well within the means of a large corporation. However, a smaller business that rents out an office space may not have the budget or control over their space needed to make these accommodations. Having to allocate capital to purchasing new furniture, or moving offices to an accessible building could count as undue hardship for a company with a smaller budget.
When making accommodations, it’s important to give employees the opportunity to provide feedback or suggestions. In many cases, the accommodations that an employee requires are minor and easily integrated into existing operations. Employers should be careful not to make assumptions about how to accommodate employees with certain characteristics.
Bona Fide Occupational Requirements
When drafting policies, an employer should also consider whether their workplace has any bona fide occupational requirements. A bona fide occupational requirement is a legitimate reason why an employer might need to “discriminate” against certain job applicants or employees.
A very common bona fide occupational requirement is a minimum level of physical ability required for physical labour. For example, a warehouse worker would need to be physically capable of lifting heavy objects, and being on their feet for a significant portion of the work day. An employer hiring for a warehouse position would not be able to reasonably accommodate an applicant with a physical disability that prevented them from lifting things.
There are other less obvious examples, but a bona fide occupational requirement must be something that is a fundamental aspect of the job, not something that may or may not occasionally be needed.
Office workers may sometimes need to lift heavy boxes of paper. But it’s unlikely that an office worker who was unable to lift this weight would not be able to do their job because of it. A reasonable accommodation in this case could be as simple as allowing that employee to ask a colleague for help. Being able to lift 30 kilograms is unlikely to be accepted as a bona fide occupational requirement for an office job.
Communication is Key
No matter what your job requirements, we strongly recommend that employers develop a human rights policy to address their specific operations. A bona fide occupational requirement may or may not be included in this policy, but if there is one, it should be in writing.
Employers should also outline the process for raising concerns or complaints. An employee experiencing discrimination should be able to read the policy and know who they can report it to, and what the next steps are.
While employers do have a duty to accommodate, we recognize that employers are also not mind readers, and sometimes a protected characteristic is not known until a policy changes. While unintentional discrimination can still constitute a violation of human rights, an employee won’t have a very strong case for the Tribunal unless they can show that they’ve made a reasonable effort to notify their employer and ask for accommodation.
Employees therefore have a responsibility to notify employers of a protected characteristic that is not being accommodated. For example, imagine you are someone who is very religious. You attend a church service at 11am every Sunday. Your employer, not knowing this about you, changes the working schedule so that all employees are required to come in on one Sunday per month.
The employer could likely reasonably accommodate your religious beliefs, by scheduling you at a different time or exempting you from the Sunday work policy. However, if you raise a concern and the employer refuses to accommodate you, then this could constitute a violation of your human rights.
How Can We Help?
Human rights are a hot topic in employment law right now, and with good reason. This is why it’s important to have clear human rights policies written down, and accessible to all your employees.
Many potential human rights issues can be resolved simply by maintaining an open dialogue with employees, and fostering a working environment where employees feel able to voice concerns.
If you have questions or aren’t sure where to start, Ascent is happy to help! Contact us today.