What is discrimination?
Discrimination is when a worker experiences harmful treatment at work that is connected to a part of their identity protected by the Code, such as age or race.
A worker experiences discrimination if each of these are true:
- A part of their identity, such as age or race, is protected by the Code,
- They experience harm or a negative impact at work and
- The harm they experience is connected to the part of their identity protected by the Code.
You can find a full list of identities protected by the Code here.
Discrimination may be:
a one-time event
For example, a woman is fired after her manager finds out she is pregnant.
For example, a worker using a wheelchair loses their job when the office relocates to a building without an elevator.
words and actions where the impact builds to create a poisoned work place
For example, co-workers repeatedly make race-based comments and jokes about their Asian co-worker.
For example, a manager limits opportunities for younger workers by assigning important projects to other workers.
What are my responsibilities under the Code?
Discrimination-free policies and practices
You are responsible to make sure policies and practices—the way things are done in your workplace—are free from discrimination. Workers should not experience harm connected to a part of their identity protected by the Code because of rules you make in the workplace, unless changing those rules would cause you undue hardship.
- What is the impact of this policy or practice on different groups of people? For example, does it impact women differently than men?
- What information or data could I collect to help identify discrimination in policies or practices? This might include common complaints, information from exit interviews, or turnover rates.
- Am I considering different perspectives and/or impacts when I make new policies or start new practices? Who do I ask for input?
- How could I adjust policies or practices to create a more inclusive experience for all workers?
You are responsible for taking steps to stop discrimination that happens within your workplace. You are responsible for the conduct of your employees when they are working. Steps to stop discrimination may include
- Having an anti-discrimination policy
- Providing training for managers and workers about human rights in the workplace
- Providing reasonable accommodation
- Having a way for workers to report discrimination in the workplace
- Responding to reports of discrimination
- Taking steps to stop the discrimination
Duty to accommodate
You are responsible to accommodate workers and people applying for jobs. An accommodation makes sure you address any barriers in the workplace based on a part of their identity protected by the Code.
A worker may tell you they need an accommodation. On the other hand, if you have reason to believe a worker needs accommodation or if the worker identifies a barrier, such as a disability, you have a duty to inquire. You can be careful not to make assumptions or ask personal questions. Instead you can share what you are observing, ask about barriers the worker is experiencing and make sure the worker knows about accommodations.
Some examples of workers who may require an accommodation to remove a barrier based on a part of their identity protected by the Code include:
- A worker who observes the Jewish Sabbath and can’t work from sunset on Friday until an hour after sunset on Saturday
- A worker who is partially sighted and needs a larger monitor for their computer
- A worker who is pregnant and can’t work with the chemicals in the lab
Accommodations require an individualized assessment, but may include things like
- providing special equipment
- adjusting a work schedule
- changing an employee’s duties
- providing additional training
You are responsible to
- learn about the worker’s accommodation needs,
- explore the options to put an accommodation in place,
- keep the worker’s personal information confidential and
- work together to put in place a reasonable accommodation.
You are responsible to do this work each time an accommodation is required because each accommodation situation is different and needs an individual plan.
- Different workers likely need different accommodations, even if they have the same disability.
- Workers may need different accommodations when there are changes at work such as new assignments, new technology or tools, or changes to the job location.
- A worker’s accommodation needs may change over time as their health, family, or personal circumstances change.
You are responsible to do this work and explore options, even if you think you cannot accommodate the worker. The worker also has responsibilities during the accommodation process.
You are responsible to pay workers the same pay for the same work.
For example: An employer has two groups of cleaners. One group is mostly men who clean a warehouse. The other group is mostly women who clean office space. Most of the work is similar. The group who cleans the office space is paid less. This would be considered discrimination based on sex.
Learn more about equal pay for equal work with our Employment Equity Toolkit.
You are responsible to make hiring decisions based on the requirements of the job. Be careful that you do not make assumptions or decisions that are based on or connected to a part of a person’s identity protected by the Code.
Your job ads should be free of discrimination and state the knowledge, skills, and abilities required to do the job.
Do not limit who can apply based on a part of an identity protected by the Code.
For example: “APPLY NOW: New nightclub opening in June. Male security staff needed.” Instead the ad could say that training in de-escalation is required.
You can include an identity protected by the Code only if you can prove it is necessary to do the job and it would result in undue hardship for you to accommodate workers who do not share that identity.
For example: An organization providing services to Syrian refugees requires fluency in English and Arabic.
In your interviews, focus on learning about the knowledge, skills, and abilities you need to know to make a hiring decision for the job.
Be careful that you do not make assumptions or decisions that are based on or connected to a part of a person’s identity which is protected by the Code.
- Assuming a single applicant will be more available for overtime shifts.
- Deciding an applicant with children will find it harder to schedule business travel.
- Guessing that an older worker is less comfortable with technology.
- Deciding an applicant doesn’t have the right experience because most of their experience is from a different country.
What happens if I don’t meet my responsibilities?
Meeting your responsibilities under the Code helps you to build a positive and respectful workplace for all your workers. Workplaces that are free from discrimination are often more productive and successful and they help to build a strong and inclusive province.
If you don’t meet your responsibilities as an employer under the Code, you may be causing harm to workers and you may be breaking the law.
A worker (or group of workers) may make a complaint against you. The BC Human Rights Tribunal receives complaints from job applicants and workers who say they have experienced discrimination regarding their employment.
If your workplace is unionized, the union may file a grievance on behalf of the worker who says they have experienced discrimination.
Complaints usually name the employer, but may also name another person who is responsible for the discrimination, such as:
- A person making a hiring decision
- A person who influences a discriminatory decision
- Another worker who harasses a co-worker
- The workplace union if the union
- Helps make a work rule that discriminates
- Blocks an employer’s efforts to accommodate a worker
A worker (or group of workers) who have made a complaint would try to prove discrimination in employment. You can read more about how a worker can prove discrimination on our page about the rights of workers under the Code.
If the Tribunal agrees that you did not meet your responsibilities under the Code, it will declare that you engaged in discrimination contrary to the Code and order you to stop the discrimination and refrain from doing it or something similar ever again. It may order you to pay damages to the person you discriminated against or take steps to improve the situation like introducing policies or providing additional training.
What if I have a good reason for my decisions?
A discrimination complaint against you will be dismissed if you can prove one of the following reasons for your decision:
1. There is a job requirement that cannot be accommodated without undue hardship
The discrimination complaint against you will be dismissed if you can prove a bona fide occupational requirement. This means you prove each of the following:
- There is a legitimate job-related purpose for the requirement.
- You honestly believe the requirement is necessary for the job.
- You explored changes to the requirement or accommodations for a worker but could not find a way to make it work.
Required qualities or skills
Most jobs require workers to have specific qualities or skills.
If you think your job requires workers to have certain skills,
- What is the purpose of this requirement?
- How is the requirement connected to doing the job?
- Did I make the requirement thinking it was reasonable and fair to everyone?
Sometimes the ability of workers to fulfill job requirements is impacted by part of a person’s identity protected by the Code, such as disability, place of origin, or age.
- Have I considered options for someone who can’t meet this requirement because of a part of their identity protected by the Code? How could they still do the job?
- Are there accommodations that would help someone without this quality or skill to do the job?
Accommodating a worker may be simple and straightforward or it may require hard work, planning, increased flexibility and additional cost. Employers are required to do this to ensure they do not discriminate against workers.
Each situation is different and must be examined individually.
An accommodation may be considered an undue hardship if:
- An accommodation would create health and safety risks for the worker or others.
- The financial cost of the accommodation is unaffordable for your company.
- There are no opportunities to accommodate a worker by moving them into a different position or to a different worksite.
- Have I explored the options to find a reasonable accommodation?
- Have I asked for information and ideas from the worker to understand what is needed?
- Have I searched for accommodation options across the organization not just within one department or team?
- Have I reached out to industry or accommodation experts for help?
- Do I know how much the required accommodation would cost rather than just assuming it would be too expensive?
- Have I consulted with health and safety experts to determine if there is a risk and how serious that risk might be?
- Can I show why further steps would be unreasonable?
- Can I demonstrate that the accommodation would be too hard for the organization to manage?
2. Seniority Schemes
A seniority scheme provides workers with promotions, opportunities, or benefits based on the length of time they have worked at an organization.
A seniority scheme may:
- Pay workers more the longer they have worked at an organization.
- Let workers who have worked longer at the organization pick shifts or vacation time first.
- Offer promotions or leadership opportunities to more senior workers first.
- Lay off new workers before more senior workers.
While a seniority scheme usually affects younger workers, it is not considered age discrimination if it is not meaning to discriminate.
3. Criminal Conviction
You may be considering whether or not to hire a worker with a criminal charge or conviction. If the criminal charge or conviction is related to the job, you may have a good reason for your decision not to hire the worker.
- If the worker repeated the action for which they have a criminal charge or conviction, would it make it difficult for me to continue my business safely and efficiently?
- How old was the worker when they were charged or convicted?
- How long ago was the criminal charge or conviction?
- Are there other factors involved that help me understand the person and events of the criminal conviction?
- How likely is it that the worker will repeat the same kind of action?
- What have they done to stay away from criminal activity after being charged or convicted?
4. Retirement and insurance plans
Under the Code, companies providing retirement and insurance plans may provide different options for workers depending on their sex, age, marital status and physical or mental disability. The options must be made honestly and in good faith.
Frequently asked questions
Are volunteers considered employees under the Code?
Probably. Even though they are not paid for their work, volunteers are often protected under the section of the Code regarding employment.
- Does my organization have a formal process for finding and signing up volunteers?
- Does my organization train our volunteers?
- Are volunteers given specific tasks to do?
- Do volunteers have to agree to follow the organizations policies and practices?
- Are there requirements about when or how often a volunteer is available?
- Do volunteers have an important role in the organization?
If you answer “yes” to most of these questions, your organization’s volunteers are likely to be considered employees for the purposes of the Code. You have the same responsibilities to these volunteers as you do your employees.
What about employment agencies?
An employment agency is responsible to ensure they do not discriminate against applicants they are helping match with jobs. If an employment agency does not refer an applicant for a job because of a part of their identity protected by the Code, this would be discrimination.
What about harassment and bullying?
When workers experience harm and it is connected to a part of their identity protected by the Code, it is considered discrimination. You have responsibilities under the Code to provide a discrimination-free workplace. Sexual harassment, for example, is acknowledged by human rights law to be a form of discrimination on the basis of sex.
Workers may also experience harm that is not connected to a part of their identity protected by the Code. In this case, the Code does not apply. However, you do have other legal responsibilities to prevent bullying and harassment. For example, WorkSafeBC requires all employers to prevent and respond to bullying and harassment in the workplace.
I didn’t intend to discriminate. Doesn’t that matter?
You are responsible for discrimination even if you didn’t intend to discriminate. The focus is not on your intentions but on the impact on the worker.
Most employers are working hard to follow the law and treat workers fairly. You may be shocked or upset if a worker says they have been experiencing discrimination at work or you have discriminated against them.
What steps you take to solve the problem or change your practices is important to meeting your responsibilities under the Code.
A worker has told me they need an accommodation but now isn’t cooperating to try and find a solution. What can I do?
Accommodation is primarily the responsibility of the employer. However, the worker is responsible to cooperate in the accommodation process. You can read more about a worker’s role in accommodation planning on our page about the rights of workers under the Code. You might be working to explore options but find the worker is not responding to requests for information or rejects your reasonable offers of accommodation. In this situation, you may be able to defend a complaint brought by the worker by proving the worker refused to participate in the process.
Remember, there may be reasons related to the need for accommodation that explain why the worker appears not to be cooperating. Do not be too quick to conclude the worker is not cooperating in the accommodation process.
What if I’d like to advertise a position open only to people with an identity protected by the Code? I want to help increase the number of people from diverse backgrounds in my organization.
Some groups have less access to jobs in B.C. because of historic and ongoing systemic barriers. For example, Indigenous peoples and people with disabilities find it harder to find and keep work because of discrimination.
Special Programs help employers lower barriers for some groups and advance equity in BC. Find out more about Special Programs, some examples and how to apply.
Who can help?
If you would like to learn more about your rights and responsibilities in employment under B.C.’s Human Rights Code
- Check out the workshops we have available or make a request for us to join your event.
- The BC Human Rights Clinic offers information and training for employers, managers, human resources professionals, and small business owners.
- The People’s Law School of BC provides online information about discrimination at work.
- SHARP Workplaces provides Sexual Harassment Advice, Response, and Prevention information, resources and free training
If you would like to make a complaint to the Human Rights Tribunal or have been notified by the Human Rights Tribunal that a complaint has been made against you
- The BC Human Rights Clinic offers information, an information line, a free 30-minute appointment with a lawyer or legal advocate and legal services for workers wishing to make a human rights complaint.
- The BC Human Rights Tribunal website offers information, resources, and examples to help understand and navigate the process of making or responding to a complaint.
- The Law Centre offers help understanding the Human Rights Tribunal process, preparing initial responses, mediation options, and legal representation. Applicants for this service must demonstrate financial need.
- Consult a lawyer with experience in human rights. A lawyer can provide legal advice specific to the details of your complaint and represent you in the human rights process.
If you are looking for resources to learn more about other legal rights and responsibilities at work
- Our Employment Equity toolkit has resources for employers wanting to learn how to improve employment equity within their businesses and organizations.
- WorkSafe BC has an online resource toolkit and prevention line to help employers and workers prevent and address bullying and harassment in the workplace.
- Employment Standards Branch sets standards for payment, compensation and working conditions in most workplaces in B.C.
- B.C. Labour Relations Board resolves issues in workplaces that are unionized or are becoming unionized.
- Check out local resources available through business associations or community groups.