Please note: on April 1, 2020 the mandate to approve special programs moved from the B.C. Human Rights Tribunal to BC’s Office of the Human Rights Commissioner. From April 1, 2020 to May 1, 2020 there will be a one-month pause in approvals as the programs move over.
Implementing a special program is a unique opportunity to advance equality in British Columbia. Equality means that each person is treated fairly and with dignity. It means that “no one is denied opportunities for reasons that have nothing to do with inherent ability”.1 In some cases, that means treating different people the same. In many cases, it means treating different people differently. In this way, we work towards achieving a society of mutual respect where all are equal in dignity and rights.2
This document explains what special programs are and how to apply to BC’s Office of the Human Rights Commissioner (BCOHRC) for approval of a special program.
What is a special program?
A “special program” is any program adopted by an employer or other service provider that aims to improve the conditions for an individual or group that has faced disadvantage. It may be part of an employment equity program.
“Disadvantage” refers to historic barriers to full participation in social, cultural, economic and political life. For example:
- Indigenous peoples have been systematically displaced from their lands, excluded from political life, deprived of full cultural expression and suffered intergenerational trauma as a result of residential schools. These legacies continue to contribute to significant disparities between Indigenous and non-Indigenous people in education, employment, income, health and housing. Indigenous people continue to experience racism individually and as a group.3 An example of a special program to benefit Indigenous people is where Indigenous people are preferentially hired in a school district to improve educational outcomes for Indigenous students.
- Racialized groups have been subjected to subtle and overt racial stereotyping that has restricted their safe access to employment opportunities, housing and public space.4 An example of a special program to benefit a racialized group is where an organization provides programming exclusively to African Canadian youth to overcome barriers and make positive changes in their communities.
- People with disabilities have been underestimated and excluded from employment and other spheres of public life. They face barriers that are the result of a society built almost exclusively for people without disabilities.5 People with mental illnesses or disabilities have been stigmatized and marginalized. 6 An example of a special program to benefit people with disabilities is where a post-secondary education institution reserves a certain number of positions for people with disabilities to improve their employment prospects.
- Women, as a group, continue to earn less money than men and carry a greater proportion of family caregiving responsibilities, which impacts their ability to participate in the workforce.7 They also face gendered violence including sexual and domestic assault at greater rates than men, often at the hands of men.8 An example of a special program to benefit women is where only women are hired to work with women survivors of domestic and sexual abuse.
- Transgender people face high levels of stigma and are at an increased risk of violence, harassment, social isolation and discrimination.9 An example of a special program to benefit trans* people is where trans* people are given preferential hiring to work with at-risk trans* youth.
This is not a complete list.
Effect of special programs approval
The examples above show that special programs treat groups differently in order to achieve their specific aims and the larger goal of ensuring equality. This can mean that other groups in society are excluded from opportunities because of factors like their race or gender. For example, restricting hiring to women, Indigenous or trans* people excludes men, non-Indigenous or cisgender people from employment opportunities. Those groups could complain that this is illegal discrimination under the B.C. Human Rights Code.
BCOHRC has the authority to pre-approve a special program. It is not necessary for a body to get pre-approval in order to implement a special program and defend it against a claim of discrimination. However, the benefit of the BCOHRC pre-approving a special program is that, for so long as that approval is in place, the special program cannot be considered to discriminate.10
This protection only applies to the terms of the special program and not to other discriminatory behaviour.
For example, a special program approval to hire only women cannot be found to discriminate against male job candidates. However, if the employer favours white women applicants, that would still be prohibited discrimination under the B.C. Human Rights Code.
Implementing a special program
There are four steps to implementing a pre-approved special program.
Step one: apply
To apply to the BCOHRC for special program approval, complete and submit the appropriate form:
- Special programs for Indigenous peoples
- Special programs for an individual accommodation
- Special programs other groups
Step two: wait for a decision
The BCOHRC will make a decision about your special program application within 30 days. From April 1, 2020 to May 1, 2020 the BCOHRC will not be issuing decisions about special programs as oversight of these programs transitions from the B.C. Human Rights Tribunal to the BCOHRC.
In some cases, the BCOHRC may require further information before it can make a decision. In that case, applicants will be contacted to request the information. This may delay the 30 day timeline.
The BCOHRC will issue its decision in a letter to the applicant and any affected third parties.
Step three: accountability and monitoring
If a special program is approved, the BCOHRC will identify any reporting requirements in its decision letter. Generally, organizations are required to report on the progress of the special program intermittently throughout the duration of the program. The progress report should identify:
- what actions the organization has taken as part of its special program;
- any barriers the organization has faced in implementing its special program, and how it has addressed those barriers;
- whether and to what extent the special program is meeting its goal of ameliorating disadvantage faced by the target group; and
- any other information requested by the BCOHRC.
Failure to comply with reporting requirements can result in the BCOHRC terminating its approval of the special program.
Step four: renewal
All special program approvals are time-limited. Generally the BCOHRC will approve a special program for a period from 6 months to 5 years. After that, it can be renewed based on a renewal application. To apply to renew a special program, complete and submit the proper form:
- Special programs for Indigenous peoples: Renewal
- Special programs for an individual accommodation: Renewal
- Special programs: Renewal
For further information
If you are considering implementing a special program and have questions, please contact Trish Garner at Trish.Garner@bchumanrights.ca.
Until April 1, 2020 special programs were administered by the B.C. Human Rights Tribunal. See the list of the current special programs that have been approved by the Tribunal.