Other than those employers in the federal sector, private sector employers are subject to provincial human rights legislation. In BC the Human Rights Code sets out the grounds upon which an employer can not discriminate in the workplace.
The Code prohibits discrimination in hiring, in employment and in advertising for that employment.
The prohibited grounds of discrimination in employment in BC are set out in section 13 of the Code, which states:
13 (1) A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of the 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.
The list of prohibited grounds of discrimination is very similar in each province.
Types of cases
The types of human rights cases employers may be faced with fall into two general categories: discrimination in hiring and discrimination in the workplace.
Discrimination in hiring cases arise when a candidate alleges they did not get the position because the employer discriminated against them on one of the prohibited grounds. It is an easy allegation for an unsuccessful candidate to make but a difficult one to prove (or for that matter, disprove). Employers can protect themselves from these types of cases by:
(1) Knowing what the prohibited grounds of discrimination are and being cautious not to ask any interview questions that inadvertently stray into a problem area of inquiry; and
(2) Keeping at least part of the interview structured, keeping proper interview notes and assessing candidates objectively. To defend against a hiring claim, you may need to demonstrate why you chose one candidate over another and interview notes comparing all candidates answers to the same questions is good evidence to rely upon.
Discrimination in the workplace cases are far more common for employers than hiring cases. These involve allegations that an employee is being subject to discrimination in the workplace on a prohibited ground or had their employment terminated because of such discrimination.
The issue of discrimination in the workplace is more complicated than most employers realize. Nowadays we rarely see cases involving blatant racism or sexism. Most employers now know better. But we often see cases now that deal with:
Attendance issues – employers will often try to manage attendance issues by holding all employees to the same standard but do not appreciate that if the attendance problem is due to a physical or mental disability, religious observance, or childcare obligation, they may be dealing with a human rights issue. If this is a human rights issue, the employer may have a duty to accommodate the employee’s situation.
Disability issues – employers may think that fairness requires them to set an objective performance standard and hold all employees to the same standard. However, employers need to appreciate that if a particular employee is unable to meet that standard because of a disability issue, then they are dealing with a human rights issue. This often triggers an employer’s duty to accommodate the employee’s disability.
Harassment issues – every employer has an obligation to keep harassment out of the workplace. This is essentially a “strict liability” situation, where the employer’s lack of knowledge of the harassment or the employer making “best efforts” but not fixing the problem is not a defence. The employer can be vicariously liable for improper conduct of its employees in the workplace and in some cases, of its contractors or customers in its workplace. Dealing with these cases is often a delicate process. Allegations must be properly investigated. If there is any merit to the allegations the employer must determine the appropriate action to take against the offending employee. Depending upon the severity of the conduct, termination of employment is not always an appropriate response.
The complaint process
Human rights complains are initiated before the BC Human Rights Tribunal.
For employment related human rights cases, the process starts with the employee (or ex-employee) filing a written complaint with the Tribunal alleging that they have been discriminated against in the workplace or by the employer. The Tribunal will review the complaint to ensure the allegations being made properly allege a breach of the Human Rights Code. If it does, the Tribunal will notify the employer about the complaint and invite a response.
The Tribunal has a mediation process that the parties can use and there are a number of other procedural applications that can be made to narrow or dismiss the case short of a hearing. If the matter is not resolved it will ultimately be adjudicated at a hearing before the Tribunal. These hearings are public so an employer must take into account that the allegations will be a matter of public record should the matter go to a hearing.
After a hearing of the matter the Tribunal will issue a decision that will either dismiss the complaint or uphold the complaint and order specific remedies and damages against the employer.
Any appeal of the Tribunal’s decision must be done through the courts in the form of a judicial review.
Unlike in the employment standards process, the Human Rights Tribunal will not initiate enforcement proceedings on the employee’s behalf to collect an award from the employer. The employee must apply to the court to enforce the order, if necessary.
Employment Standards Issues
The legislation and types of cases
Every province has its own legislation addressing employment standards. In BC, it is the Employment Standards Act.
The Act sets out minimum standards for employment that employers must meet, governing such issues as: minimum wages, hours of work, overtime, statutory holidays, vacation entitlement, various leaves and the termination of employment.
The legislation itself prohibits any contracting out of the Act. This means that no agreement between the employee and employer not to apply the provisions of the Act is valid or binding.
Employment Standards issues can be frustrating. The Employment Standards Branch is a government organization that will investigate and determine and employee’s complaint at no cost to the employee. As such, there is often little incentive for the employee to settle the matter. Often the amount of money involved is relatively small so the cases do not warrant the employer retaining a lawyer or spending too much time fighting the complaint.
We usually advise our clients that if the amount involved is small and the case applies only to the single complaining employee and sets no precedent, it might be reasonable to take a pragmatic approach and settle the case on their own.
The employer must be careful however that the case is not the “tip of the iceberg” of a bigger claim. If the employer has not properly paid certain compensation or benefits to a particular employee, after a determination is issued the Branch may review the employer’s entire payroll to determine how many other employees have been improperly paid. In that case, what initially seemed like a modest claim by one employee quickly becomes an expensive claim by many.
The complaint process
In BC, enforcement of the legislation is carried out by the Employment Standards Branch. While the Branch has the ability to initiate an investigation on its own initiative, most cases originate with a complaint from an employee (or more often, an ex-employee).
The employee initiates the process by using the Branch’s “self help kit” trying to resolve the issue directly with the employer. If the matter can not be resolved directly between the parties the employee may file a complaint which will cause the Employment Standards Branch to resolve the matter through the mediation or adjudication process.
Ultimately, the Director of Employment Standards can issue a written decision (called a determination), which orders the employer to pay any amounts found to be owing to the employee and can also assess administrative penalties on the employer for any violations of the Act. Once a determination has been issued, the Branch can initiate collection proceedings against the employer to ensure that the payments ordered under the determination are made.
The employer may appeal a determination to the Employment Standards Tribunal which is independent of the Employment Standards Branch. A further appeal of the Tribunal decision can be done through a reconsideration application to the Tribunal itself. Appeals beyond that are done through the courts in the form of a judicial review application.
Workers Compensation Board Issues
In BC, the Workers Compensation Act governs workplace health and safety within the province. It governs such issues as:
The employer’s responsibilities to ensure a safe workplace;
Protection against safety related discrimination;
Safety standards enforcement;
Administrative procedures; and
Regulation making authority.
An employer’s obligations can be found in the Part 3 of the Workers Compensation Act, the Occupational Health and Safety Regulation, OHS Policies, and WorkSafe BC Standards.
Types of cases
Occupational health and safety issues that employers can commonly find themselves facing are:
Employer’s rate classification – the insurance premiums that an employer must pay to the WorkSafeBC are expressed as a percentage of payroll and can be significant. Employers are classified into a rate group by their “main business undertaking”. The premium rate for each rate group depends upon the claims history in that group and can vary significantly between industries. Employers who believe that they should be classified in a different group (with a lower premium rate), can appeal the assessment internally through the reconsideration process. Further appeals can be made to the Workers Compensation Appeal Tribunal.
Claims management – when an employee makes an injury claim and receives benefits in respect of that claim it may affect the premiums the employer will have to pay to WorkSafe BC. The employer can participate in the claims process, particularly if it believes that the injury was not work related or if the employee had a pre-existing condition.
Penalties and fines for health and safety violations – WorkSafeBC can impose penalties and fines upon an employer for failing to take sufficient precautions to prevent work related injuries or illnesses, for failing to comply with OHS regulations, or for having an unsafe workplace or unsafe working conditions. These penalties can be significant, particularly if the employer has a history of similar violations or if the violation was high risk or intentional.
Discriminatory action complaints – it is unlawful for an employer to discriminate against an employee for reporting a health and safety issues to WorkSafeBC. Employees whose employment ends or whose terms and conditions of employment change after having made a report will often allege that the change in employment is connected to their having made the report and will initiate a complaint to WorkSafeBC. Such complaints can be time consuming and expensive. If the complaint is successful it can result in the reinstatement of the employee, payment of lost wages to the employee and payment of expenses related to the complaint.
Depending upon the type of order or decision being made by WorkSafeBC, appeals may be internal (to the WorkSafeBC Review Division), or external (to the Workers’ Compensation Appeal Tribunal). There are strict time limits to initiate any appeal.
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