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What, Really, is the Place for Human Rights? Defining the Vagueness

Richard B. Johnson

Co-Founder + Partner
December 17, 2021

Human rights have been at the forefront of employment issues for a long time, but in the current climate we are seeing a massive surge in human rights-related questions and complaints. We encourage every worker and every person in BC to familiarize themselves with their provincially and federally-protected rights in the workplace.  

Where Are Human Rights Defined?

Every person in Canada is entitled to basic human rights. The human rights of workers in British Columbia are defined by one of two standards:

The Federal Canadian Human Rights Act

This Act covers human rights for workers in federally-governed and regulated industries, such as airlines, utilities, and interprovincial transportation and shipping.

The BC Human Rights Code

The Code covers all provincially-governed workers — which is, essentially, any worker based in BC who is not in a federally-regulated industry. This means everything from office employees to construction and restaurant workers.

Every province in Canada has its own specific human rights legislation, and each of those statutes has similar but not identical protections to each other and the employee protections in the Canadian Human Rights Act.

Our focus here will be on the BC Human Rights Code.

What is Protected Under the Human Rights Code?

The Code defines prohibited grounds for discrimination. This means that, under the Code, an employee (or potential employee) cannot be discriminated against for any of the following qualities:

  • Race

  • Colour

  • Ancestry

  • Place of origin

  • Religion

  • Marital status

  • Family status

  • Physical or mental disability

  • Sex

  • Sexual orientation

  • Gender identity or expression

  • Age

This is the basic framework for human rights in the workplace. Under some broader categories, the government also protects analogous issues that, though not specifically defined, fall under the umbrella of a protected characteristic. For example, firing someone for taking maternity leave (or not hiring them because they may become pregnant) is a prohibited form of discrimination in the workplace, because this issue falls under the umbrellas of sex and/or family status.

When do Human Rights Apply in the Workplace?

The BC Human Rights Code provides protection against discrimination during the hiring process, during our working relationships with employers, and during the dismissal process. 

That said, if an employer can demonstrate that a job actually requires differentiating between candidates with certain characteristics, such as choosing workers with particular physical abilities to do physical work, those decisions may be allowed. The decision must be made in good faith, and the requirements of the job that allow for discrimination between workers must be clear. 

The following are examples of actual discrimination under the BC Human Rights Code

  • Not being considered for an interview or not being hired because of your race

  • Being passed over for a promotion because of your age

  • Being bullied in the workplace for your sexual orientation

  • Being wrongfully dismissed because of a physical or mental disability

It is important to understand that personal choices are not protected by the Code.

What is the Issue Right Now?

In recent months, BC has seen a groundswell of human rights complaints being filed to the BC Human Rights Tribunal, particularly in regard to COVID-related issues. 

Normally, when complaints are received by the Tribunal they are filed and potentially flagged for follow-up, that follow-up being the gathering of information needed to prove that they are indeed related to a Human Rights ground.

What we’re seeing right now, however, is that the Tribunal is rejecting some complaints on a preliminary basis because they fail to raise a legitimate Human Rights issue. For example, the Tribunal rejected recent complaints against Dr. Henry and Premier Horgan relating to vaccination cards as those complaints were premised on personal preferences rather than legitimate discrimination. 

The elephant in the room here is that a large portion of recent complaints are concerning workplace vaccination policies and rights around COVID-19 vaccination status. The problem is that in the majority of cases, there is no actual discrimination on a human rights basis taking place. Personal choices regarding vaccination (and other COVID-19 protection measures such as masks) are not the subject of a proper Human Rights complaint.

Without sounding overly harsh, submitting complaints to the Tribunal on grounds that are not related to Human Rights amounts to an abuse of the system. The Tribunal is forced to dismiss many of these complaints on receipt so that it has the resources to deal with legitimate concerns when they do arise. 

It’s on individuals to know what is and is not covered by the BC Human Rights Code — but this also means that employers need to tread carefully when developing policies to protect their workers. 

What can Employers Do to Address Human Rights Concerns?

In response to public health mandates, a lot of employers are putting forth vaccine rules — in some cases, this is well within the employer’s rights. However, it’s important to ensure that reasonable accommodations are built into any workplace policy.

A small percentage of the population will have a legitimate reason for not being able to be vaccinated. There are some people who, for example, have life-threatening allergies to certain ingredients in vaccines. In cases like these, discrimination against the employee on the grounds of their vaccination status may constitute a legitimate Human Rights complaint, if an alternative was not offered. 

In select workplaces, such as hospitals and care homes, a reasonable accommodation can look like requiring an unvaccinated individual to work remotely, or elsewhere. In cases like these, allowing unvaccinated employees to work presents a public health risk, which jeopardizes the rights of other individuals, and can amount to an undue hardship for the employer. 

In the vast majority of workplaces, however, the requirement for all employees to be vaccinated is problematic — employers need to be sensitive to employees who may have legitimate grounds for remaining unvaccinated, and offer reasonable alternatives, such as requiring masks when working onsite, or allowing employees to work remotely at their own discretion. 

In order for a complaint to be considered a legitimate human rights issue, a complainant must be able to prove that:

  1. They had a legitimate reason, directly related to a protected quality (such as physical disability, or religion) for not being vaccinated or not adhering to a company’s COVID-19 policy.

  2. They were not offered reasonable accommodations as an alternative.

It’s important to remember that human rights have to serve the majority of humans — and humans are a very diverse group, with a variety of different needs. Human rights issues are complex, there are nuances, and a one-size-fits-all solution isn’t always available. 

That said, what we’re seeing is that the majority of employers and workers alike are amenable to policies and solutions that are designed to protect the majority, even if there is some minor personal inconvenience involved (like wearing a mask, for example). Employers who are familiar with the BC Human Rights Code are better equipped to create informed, appropriate policies. 

If you’re concerned about Human Rights issues in your workplace or want help developing a policy that is respectful to all your employees, don’t hesitate to give us a call! We are very experienced with workplace Human Rights issues, and we’re here to help.