Chapter 2: The Legal Environment in Canada
2.2 Human Rights Laws
Learning Objectives
By the end of this section, you will be able to
- Describe human rights laws in Canada, as well as notable cases.
Human rights laws protect specific groups of people from discrimination in employment, as well as the provision of goods and services.
Grounds for protection against discrimination in employment in B.C. include the following:[1]
- Race, ancestry, colour, and place of origin
- Mental or physical disability
- Age (if 19 or older)
- Criminal conviction
- Marital status or family status
- Gender expression and identity
- Sexual orientation
- Political belief
Discrimination can be intentional or unintentional. If a policy or practice has a disproportionate impact (adverse effect) on a group of people protected under human rights legislation, it is discriminatory.
A bona fide occupational requirement (BFOR) allows employers to discriminate if they have a legitimate reason to do so. For example, you may discriminate against someone who is unable to lift 30 kilograms (65 pounds) if being able to lift that weight is a BFOR.[2]
There are three questions that must be answered in order to determine whether a standard is a BFOR. Did the employer
- Adopt the standard for a purpose rationally connected to the performance of the job?
- Have an honest and good-faith belief that the standard or process was necessary, and did not intend to discriminate?
- Ensure the standard is reasonably necessary, and the employer took all reasonable steps to avoid an adverse impact on a protected group (reasonable accommodation)?
Is it really a BFOR? The case of Tawney Meiorin
Tawney Meiorin worked as a B.C. forest firefighter for three years, and had been performing satisfactorily, when the government implemented a new aerobic-capacity test, which involved running 2.5 kilometres in no more than 11 minutes. Meiorin failed the test, completing the run in 11 minutes 49 seconds, and was subsequently dismissed. She argued that the standard discriminated against women as most women have a lower aerobic capacity than men. The arbitrator found that the standard was discriminatory because it had an adverse effect on women, and the government had failed to demonstrate that the standard was necessary to perform the work of a forest firefighter safely and efficiently. The case eventually made its way to the Supreme Court of Canada, and in its decision the court established a three-step test to establish a BFOR.
Employers are expected to accommodate to the point of “undue hardship.” This means that a standard or requirement is reasonably necessary to ensure that work will be performed successfully, both safely and efficiently. Undue hardship occurs when an employer cannot bear the costs of the accommodation. For instance, a very small business with a narrow profit margin may not be required to install an elevator or purchase expensive equipment to accommodate a disabled employee. However, this may not be an unreasonable expense for a larger employer. Also, if the safety of the employee, colleagues, or the public could be jeopardized, an employer may not have to accommodate.
What is “family status”: The Campbell River test
In 2004, the B.C. Court of Appeal heard the case of Shelley Howard, an employee of the Campbell River and North Island Transition Society and Community Social Services Employers’ Association (CRNITS). Howard’s teenage son had both medical and behavioural problems. During the course of her part-time employment with CRNITS, Howard’s workload declined. To address this, the employer decided to change Howard’s hours of work from 8:30 a.m.–3:00 p.m. to 11:30 a.m.–6:00 p.m. Howard expressed concern about the change in hours as she needed to look after her son after his school hours and provided documentation for this from her family doctor. While the court noted that Howard experienced “demanding and difficult child-care obligations,” they concluded that she was not being discriminated against upon the fact that she was a parent, and that simply having difficult child-care arrangements would not make parents a “class or category that Section 13 … seeks to protect.”[3]
Key Takeaways
- Human rights laws protect specific groups of people from being discriminated against.
- Discrimination can be direct or unintentional yet still have an adverse impact on a protected group. The law does not distinguish between intentional and unintentional discrimination.
- Some employers may discriminate if they have a bona fide occupational requirement to do so. There is a three part test that must be completed to establish a BFOR.
- Employers have a duty to accommodate to the point of undue hardship.
Key Terms
adverse impact/effect: When an adopted policy or practice has a negative impact on members of a protected group.
bona fide occupational requirement (BFOR): Allows employers to discriminate and adopt discriminating policies if they have a legitimate reason to do so.
discrimination: A policy or practice that has a disproportionate impact (adverse effect) on a group of people protected under human rights legislation. It can be intentional or unintentional.
protected groups: Specific groups of people identified in the human rights code who share an attribute that is defined as “prohibited grounds” for discrimination under the human rights act.
undue hardship: When an employer cannot bear the costs of accommodating an employee.
Exercises
- You are hiring a new front-desk person for your hotel. Only two applicants have any previous experience in a hotel, so you bring them both in for an interview. One applicant is clearly not suitable for your hotel, but the other applicant has experience, good references, and you were impressed by her interview. The problem, from your perspective, is that at the interview you noted that she is clearly four to five months pregnant, which probably will mean she will go off on maternity leave during your busy holiday season. Do you offer her the job? Discuss.
- You are creating a newspaper ad for a new job posting in your Surrey, B.C., branch. This community has a high number of residents who speak Punjabi. When might it be okay to say “Preference will be given to individuals who speak Punjabi”?
- "Human Rights Code [RSBC 1996] Chapter 210," BC Laws, accessed January 29, 2017, http://www.bclaws.ca/Recon/document/ID/freeside/00_96210_01. ↵
- British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, 1999 CanLII 652 (SCC), accessed January 29, 2017, http://canlii.ca/t/1fqk1. ↵
- Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, [2004] BCCA 260 (CanLII), accessed January 29, 2017, http://canlii.ca/t/1h23x. ↵
