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What’s happened to human rights during the pandemic?

Guest
September 10, 2021

Under BC’s Human Rights Code, individuals continue to have all of the legislated protection they did previously.

This is true when it comes to the vaccine card, or any other vaccination policy. As stated by the BC Human Rights Commissioner:

“Policies that treat people differently based on whether they have been vaccinated…must remain consistent with the obligations legislated under B.C.’s Human Rights Code. Individuals must be protected from discrimination based on their place of origin, religion, physical or mental disability, family status or other Code-protected ground.”

This is also true in relation to any other requirements around COVID-19, such as mask mandates.

The underlying principles – and how the Tribunal applies those – have not changed. A few of these principles, and how they have played out in relation to mask complaints, are reviewed below.

Key Principles

  • One of the first purposes of the Code is to “foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia.”

  • In the employment context, individuals are protected from discrimination on the basis of 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.

  • Importantly, there is an exception for employer actions that are based on a bona fide occupational requirement (for example, requiring a worker on scaffolding to wear a safety harness and hard hat).

  • In order to establish a human rights complaint, a complainant must prove three things:

  1. They have a characteristic protected from discrimination:

  2. They experienced an adverse impact in a protected area (such as employment); and

  3. The protected characteristic was a factor in the adverse impact.

  •  Individuals are expected to request accommodation. For example, if you are unable to wear a mask because of a disability, you should inform the service provider that you require disability-related accommodation. While you do not have to disclose your specific disability, you do need to request accommodation. More extensive disclosure may be required in the employment context.

  • In order to establish a claim of disability discrimination, the Human Rights Tribunal will require the complainant to prove that they have a disability, and demonstrate that the disability prevents them from wearing a mask. Similar principles will apply if vaccination is a job requirement (i.e. the worker will need to show they have a disability, and that disability prevents them from being vaccinated).

  • In BC, personal beliefs are not protected under the Human Rights Code – while individuals are entitled to their own opinions with respect to the effectiveness and safety of masks, vaccines, or other public health measures, that personal choice is not something that has to be accommodated.

Mandatory Mask Requirements: Cases

In The Customer v The Store, 2021 BCHRT 39, the BC Human Rights Tribunal considered a complaint where a customer was asked to wear a mask at a grocery store, but refused.

The customer advised the security guard she was “exempt” from wearing one, but refused to explain why, other than to say that the mask caused “breathing difficulties.” The customer claimed that the grocery store had discriminated against her based on physical and mental disability.

At paragraph 14, the Tribunal summarized its views on this point (emphasis added):

The Code does not protect people who refuse to wear a mask as matter of personal preference…the Code only protects people from discrimination based on certain personal characteristics, including disability. This protection is reflected in exemptions to mask‐wearing rules for people whose disabilities prevent them from being able to wear a mask or other face covering. Any claim of disability discrimination arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interferes with their ability to wear the mask.

In The Worker v The District Managers, 2021 BCHRT 41, the BC Human Rights Tribunal considered a religious exemption to the requirement to wear a mask. In this case, a worker was asked to use a face mask, and refused to do so on the basis it was his “religious creed.” The worker’s employment was then terminated for the refusal to wear a mask, and the worker filed a human rights complaint on the basis of discrimination based on religion.

Again, the Tribunal did not accept the complaint, as it held that the objection was not based on a sincerely held religious belief, but rather on the worker’s “opinion that wearing a mask does not stop the transmission of COVID-19” (a belief not protected by the Code).

In a recent decision, Rael v Cartwright Jewelers, 2021 BCHRT 106, Ms. Rael was denied entry to Cartwright Jewelers because she refused to wear a mask. Her complaint was dismissed, as she both failed to establish a disability (her complaint stated she had “breathing issues”), and there was no connection between a disability and the adverse impact of being denied entry into the store (she had not informed the store her refusal was due to a disability, and did not advise she needed accommodation).

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