Trevor R. Thomas
Examples of Discrimination
Our firm regularly works with clients experiencing the following forms of discrimination:
1. Kali works for a large development company and after four months of very positive reviews of her work, the employer informs Kali that she’s in line for an imminent promotion that will come with a higher salary and more responsibility. Around the same time Kali takes a few days off to get married and when she returns to work, she is wearing traditional Muslim clothing reflecting her decision to join her husband’s faith. Shortly thereafter, Kali is instructed by her manager to dress in western-style business clothes at work. Kali refuses and some weeks later a performance review finds her not measuring up, and she is fired. Kali wonders if losing her job was based on her religion.
2. Mary works as an executive assistant for a CEO of a midsize company. Although she thrives in her job and relies on her job income to support her family, she has experienced ongoing sexual harassment from a male colleague at work. Her complaint to the employer has only made the person harassing her become hostile and threatening. Driven to the point of a mental breakdown from the stress of the situation, Mary considers taking the complaint to the Human Rights Tribunal on the basis of gender discrimination.
The Legal Definition of Discrimination
According to human rights law in British Columbia, discriminating against someone in employment on the basis of their Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person, is unlawful. The BC Human Rights Tribunal is the body that enforces human rights legislation in BC.
Employees like Kali and Mary who believe their employer has violated their human rights may submit a complaint to the Tribunal. Employment-based cases have historically been about 60% of the Tribunal’s caseload.
The Role of the Human Rights Tribunal
The Tribunal comprises administrative law decision-makers who conduct mediations between the complainant and the defendant, preside over pre-hearing conferences, decide whether to dismiss a complaint without a hearing, conduct hearings and render final decisions on the merits of a complaint.
The Tribunal recognizes that discrimination is often indirect and can take many forms that can be very subtle. So, in the absence of a smoking gun that proves discrimination explicitly, the Tribunal will examine all of the circumstances of the complaint, the timing of events, and the testimony of the employee, employer, and any other corroborating testimony from witnesses, before finally reaching a decision.
Once the respondent (employer) receives notice of the complaint, they may submit an application to have the complaint dismissed. For example, they could argue that there is no substantiating evidence of discrimination and/or the employee’s dismissal was solely based on poor performance, not discrimination.
Short of dismissing the complaint or taking the case all the way to a hearing, the Tribunal provides another option for complainants. An Early Settlement Meeting (i.e., mediation) brings both the complainant and the respondent together with a member of the Tribunal to discuss potential solutions to the issue, before proceeding to a formal hearing.
At this stage the complainant can decide what they want from the Tribunal process; is it getting their job back, having benefits or opportunities reinstated, receiving an apology from the employer, or monetary compensation? Or do they want to proceed with a hearing on principle to ‘get their day in court’ so that the wrongdoing by the employer is published and they can feel that justice was served?
It is advisable for anyone making a submission to consult a legal advocate in preparing their complaint and to help them determine what result would satisfy them. Is it to tell their story of unjust treatment? Is it to teach their employer a lesson? Perhaps it is to protect their co-workers from discrimination by the same employer or make the employer pay for their wrongdoing. Perhaps it is all of the above.
If the Tribunal finds the employer violated the Human Rights Code, it will endeavour to order an award that reflects the impact of the discrimination on the complainant. The Tribunal will consider various factors in deciding on an award. For example, how much has the complainant lost as a result of the discrimination, whether to their career, their income, health, etc.? Will they have difficulty finding employment based on their limited abilities or a disability of some kind? If the employee is working in Canada on a work permit that is tied to their employer, could they lose their status and be forced to leave the country?
Also taken into account is the relationship between the person who inflicted the discrimination and the person that experienced discrimination. If the complainant was someone with little power and authority relative to the defendant (in other words, a person in a highly vulnerable position), the severity of the discrimination may be greater.
The remedies that the Tribunal can offer to complainants who suffer discrimination can include money for the injury to their dignity, feelings, and self‐respect, damage to their reputation or a loss of income and employee benefits. The employee may have the opportunity to get their job back, receive benefits and promotions that were previously offered, or a monetary award, payable by the employer.
The financial award can also serve as a disincentive for the employer to infringe on its employees’ human rights in the future.
The monetary awards are not large in BC compared with other jurisdictions such as Ontario. However, BC’s Tribunal awards have increased in recent years with greater recognition of the impact discrimination can have on a person and in the context of changing attitudes towards discrimination in our society.
It is advisable for anyone making a complaint to consult a legal advocate to help gather their evidence, explain their story, determine possible remedies, and prepare their complaint.