1
Q
When did BC introduce its first human rights legislation? And what was it called?
A
1973, Human Rights Code
1
Q
What does “discrimination” mean to the courts?
A
intentional or unintentional act of exclusion
2
Q
What are intentional acts of exclusion called?
A
“direct” or “intentional” discrimination
3
Q
What are examples of acts of discrimination that are hidden or unintentional?
A
Policies or practices
4
Q
What does prima facie mean?
A
upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment
5
Q
What is the leading case for the general test for hidden or unintentional discrimination?
A
Moore v. British Columbia
6
Q
What are the three questions that the Moore v. British Columbia test asks?
A
- The complainant has a characteristic protected from discrimination by the human rights legislation;
- the complainant experienced an adverse impact with respect to their employment; and
- the protected characteristic was a factor in the adverse impact.
** Once a complainant has provided enough evidence to prove each of these three elements, it is up to the employer to prove that its policy, practice, or conduct is justified. If it cannot do so, the court finds discrimination and provides a remedy.
7
Q
What is systemic discrimination?
A
the web of employer policies or practices that are neutral on their face but have discriminatory effects; also called “institutional discrimination”
8
Q
What are 8 key features of Human Rights Legislation?
A
- Human rights legislation applies to both the private and the public sector and to the conduct of individuals. Unlike the Charter, its application is not limited to the actions of government.
- Discrimination in employment is prohibited on numerous grounds, which are similar but not identical in Alberta and BC:
- To infringe human rights legislation, it is not necessary to intend to discriminate.
- The effect of an employer’s action or rule matters as much as the intent. The employer has a duty to accommodate the special needs of protected individuals or groups unless doing so would create undue hardship for the employer.
- No one can contract out of human rights legislation. For example, the negotiated terms of a collective agreement are void if they do not comply with the legislation.
- Human rights legislation provides for civil remedies, such as ordering an employer to compensate employees for lost wages or mental suffering, or order ing it to change its employment policies. It does not provide for criminal penalties, such as imprisonment.
- Human rights legislation is quasiconstitutional in that if there is a conflict between its provisions and those of another provincial statute, its requirements prevail.
- Human rights legislation applies to every stage of the employment relationship, from recruitment through to termination.
9
Q
What 16 things does BC protect from discrimination?
A
Race, religion, colour, sex, sexual orientation, physical disability, mental disability. age, ancestry, place of origin, marital status, family status, gender identity, gender expression, political belief and conviction of a criminal unrelated to area of employment.
10
Q
Where is the purpose of the BC Human Rights Code defined?
A
In section 3
11
Q
What is the four point purpose of the BC Human Rights Code?
A
(a) to foster a society in British Columbia in which there are no impedi-ments to full and free participation in the economic, social, political and cul-tural life of British Columbia;
(b) to promote a climate of understanding and mutual respect where all
are equal in dignity and rights; (c) to prevent discrimination prohibited by this Code; (d) to identify and eliminate persistent patterns of inequality associated
with discrimination prohibited by this Code;
(e) to provide a means of redress for those persons who are discriminated against contrary to this Code.
12
Q
What is remedial legislation?
A
legislation that exists to right a societal wring, not to allocate blame or punish an offender.
13
Q
In cases of uncertainty who is a matter resolved in favour of?
A
Employee
14
Q
What are the five main areas of social activity that the statute provides that everyone has the right to be free from discrimination?
A
- publications and notices;
- goods or property, services, accommodation (housing), and facilities;
- tenancies;
- employment practices, including equal pay, and advertisements; and
- membership in trade unions and occupational associations.
15
Q
What are anti-reprisal clauses?
A
they are meant to give individuals the comfort to raise concerns and complaints without fear of discipline, termination, or other employment-related consequences.
16
Q
What is listed in section 13 of the BC Code?
A
Lists the grounds of discrimination related to employment
17
Q
What is section 13(4) of the BC Code?
A
An exemption for bona fide occupational requirements (BFORs)
18
Q
What are two examples other than section 13(4) of exemptions in the BC Code?
A
it exempts non-profit social organizations that serve a protected group (s 41) and employment equity programs designed to help disadvantaged indi-viduals or groups (s 42)
19
Q
What are the three questions for the prima facie discrimination test?
A
- that the complainant was qualified for the particular employment;
- that the complainant was not hired; and
- that either
a. someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint (sex, religion, race, etc.) subsequently obtained the position, or
b. the employer continued to seek applicants with the complainant’s qualifications. (at para 117)
20
Q
Are minor illnesses such as the common cold or flu considered a disability?
A
No
21
Q
What is stated in section 12(3)?
A
states that a wage difference between employees of different sexes that is based on a factor other than sex is permissible, provided that the factor reasonably justifies the difference
22
Q
What does section 12 of the BC Code state?
A
When employees of any sex (male, female, or transgendered) perform the same or substantially similar work, they must be paid at the same rate. Furthermore, the employer is not allowed to reduce another employee’s salary to meet the requirements of the legislation
23
Q
What does section 12(2) stipulate?
A
of the BC Code specifies that “the concept of skill, effort and responsibility must … be used to determine what is similar or substantially similar work.”
24
To prove a violation of the equal pay for equal work provisions is there a need to show that an employer intended to discriminate?
No
25
What Is Equal Pay for Work of Equal Value?
recent concept that requires employers to compare totally different jobs and ascertain whether they are equal in value. The only jurisdictions in Canada that impose comprehensive compliance obligations on employers to achieve pay equity are those that are federally regulated and employers in Ontario and Quebec under their respective Pay Equity Acts. The federal Pay Equity Act was introduced in October 2018.
26
What does the equal pay for work of equal value? (Pay Equity Acts)
The Act requires that employers establish a pay equity plan that includes (1) an analysis of gender predominance of job classes, (2) estimates of the value of work performed by each job class, and (3) a comparison of pay between predominantly male and predominantly female job classes of similar value.
27
Instead of "equal pay for work of equal of value" what does BC use instead?
For similar or substantially similar work
28
What section of the BC Code indirectly addresses employment equity?
Section 42
29
To engage in the protection from the BC Code must the discriminatory treatment be based on one of the prohibited grounds?
Yes. Ex, cannot file a discrimination report due to social class.
30
Under the BC Code when are employers allowed to discriminate?
employers to discriminate on any of the grounds listed so long as the employer’s “refusal, limitation, specification or preference” is based on a “bona fide occupational requirement” (s 13(4)). The BC Code also allows certain organizations to grant “preference” to members belonging to “an identifiable group or class of persons.” These identifiable groups or classes match the categories of persons discussed above with three exceptions—family status, sexual orientation, and conviction for an offence are not included. The exemption is granted where the organization has “as a primary purpose the promotion of the interests and welfare” of that identifiable group or class of persons and is “not operated for profit” (s 41). An obvious example of this is an agency that provides relief counselling to sexually abused women and hires only female staff
31
What is employment equity program?
a special program to relieve or promote people who typically suffer from employment discrimination on the basis of prohibited grounds.
32
What is section 42 of the BC Code?
permits discrimination in the case of persons disadvan-taged because of race, colour, ancestry, place of origin, physical or mental disability, or sex. Under this exemption, an employer may implement a special program to relieve or promote people who typically suffer from employment discrimination on the basis of those prohibited ground
33
What is an example of section 42? (Employment Equity Program)
where the employer has a bona fide affirmative action program to hire someone from a First Nations background, the employer may discriminate in favour of people who fall within that category. This provision is consistent with sections 6(4) and 15(2) of the Charter.
34
How do you make a human rights complaint?
1. obtain an application form from the website of the BC Human Rights Tribunal.
2. File it within one year of the alleged discriminatory incident.
35
What might the tribunal order the respondent to do?
cease the discriminatory policy or behaviour;
* refrain from engaging in the same or similar discriminatory acts in the future;
* award the complainant any opportunities or privileges that were lost as a result of the discrimination (e.g., a tribunal may order that a complainant be reinstated to their position or be given a promotion that was denied);
* compensate the complainant for any or all wages, income lost, or expenses incurred because of the discrimination; or
* take any other action the tribunal considers proper to place the complainant in the position they would have been in but for the discrimination.
36
Is there an independent tort of discrimination under the commone law?
No
37
if an employee’s claim of discrimination or harassment is part of a civil
lawsuit, such as a claim for wrongful dismissal can they pursue a parallel claim with a tribunal?
Not usually
38
How is undue hardship defined?
occurs if accommodation creates “onerous conditions,” “intolerable financial costs,” or “serious disruption” to the business
39
From the Meiorin case, what test has come from it to defend a discriminatory standard or rule?
1. demonstrate that a rational connection exists between the purpose for which the standard was introduced and the objective requirements of the job;
2. demonstrate that the standard was adopted in an honest and good-faith belief that it was necessary for the performance of the job; and
3. establish that the standard was reasonably necessary to accomplish that legitimate work-related purpose. To establish this, the employer must show that it was impossible to accommodate employees who share the characteristics of the claimant without imposing undue hardship on itself.
40
What questions have been suggested of the court to ask in terms of the duty to accomodate?
1. Did the employer investigate alternative approaches that do not have a dis-criminatory effect, such as individual testing?
2. Were there valid reasons why alternative approaches were not implemented? What were they?
3. Can the workplace accommodate different standards that reflect group or individual differences and capabilities?
4. Can legitimate workplace objectives be met in a less discriminatory manner?
5. Does the standard ensure that the desired qualification is met without placing an undue burden on those to whom it applies? Have other parties who are obliged to assist in the search for accommodation (e.g., the union representing an affected worker) fulfilled their roles?
Have other parties who are obliged to assist in the search for accommodation (e.g., the union representing an affected worker) fulfilled their roles? Have other parties who are obliged to assist in the search for accommoda-tion (e.g., the union representing an affected worker) fulfilled their roles?
41
What is stated in section 11 of the BC Code under Contents of Advertisements?
It just prohibits advertisements from “express[ing] a limitation, specification or preference as to” any of the grounds listed in section 13 (except for prior offences), unless there is a BFOR.
42
what does BFOR stand for?
Bona Fide Occupational Requirement
43
What are ways to limit the potential for human rights problems arising from the interview?
Accomodate disabilities
Have a standard set of questions and evaluation criteria
Use interview teams
Beware of prohibited grounds
44
What information/documents can you request after a conditional offer of employment?
a copy of a driver’s licence, which contains information such as date of birth; * a work authorization from immigration authorities, which contains informa-tion regarding date of arrival in Canada;
* a social insurance card, which may contain information regarding immigra-tion status;
* a transcript or copy of professional credentials, which often indicate place of origin; and
* requests for medical examinations or health information necessary for pen-sion, disability, superannuation, life insurance, and benefit plans, all of which may indicate physical disabilities.
45
What are the two main conditions of medical tests?
Medical tests to determine a candidate’s ability to perform the essential duties of a job should take place only after a conditional offer of employment is made and only if there is no other reasonable way for the employer to determine the applicant’s abil-ity to do the job
46
Does Human rights legislation consider alchoholism and drug dependency to be forms of disability?
Yes
47
What are the three primary factors of Duty to Accomodate?
1. Individualization. There is no formula to determine when the duty to accom-modate has been satisfied. Each person’s needs are unique; a solution that meets one person’s requirements may not meet another’s.
2. Dignity. People must be accommodated in a manner that most respects their dignity, including their privacy, confidentiality, comfort, and autonomy. For example, a wheelchair entrance over the loading dock or garbage room is unacceptable.
3. Inclusion. Job requirements and workplaces must be designed with everyone in mind. An employer cannot base systems or requirements on “normal employees” and then make exceptions as people or groups request them.
48
16 points of Rights and Responsibilities of the Employer or Service Provider?
1. Determine if the request falls under any of the areas and grounds pro-tected under the [Act].
2. Be aware that once a request is received, the onus to accommodate is on the employer or service provider.
3. Respect the dignity of the person or group requesting accommodation. 4. Respect the privacy of the person requesting accommodation. Medical information is considered personal information, and employers must abide by applicable privacy legislation when they collect, use, or dis-close an employee’s medical information.
5. Listen to and consider the needs of the person seeking accommoda-tion and their suggestions for accommodation.
6. Review medical or other information that the person seeking accom-modation provides to support the request for accommodation.
7. Be willing to take substantial and meaningful measures to accommo-date the needs of the person seeking accommodation.
8. Consult an expert such as a human resources officer or lawyer if more information is needed to assess the request.
9. Be flexible and creative when considering and developing options.
10. Discuss options with the person who needs accommodation. 11. Take reasonable steps to accommodate the person seeking accommo-dation to the point of undue hardship. If full accommodation is not possible without undue hardship, try to suggest options that may par-tially meet the needs of the person seeking accommodation.
12. Reply to the request for accommodation within a reasonable period of time.
13. Make a formal written agreement with the person being accommodated and ensure that the accommodation is given a fair opportunity to work.
14. Follow up to ensure that the accommodation meets the needs of the person seeking accommodation.
15. Provide details that justify a refusal to accommodate, if accommoda-tion is not possible because it poses undue hardship or because of a bona fide occupational requirement. ...
16. Be willing to review and modify the accommodation agreement if cir-cumstances or needs change and the agreement is no longer working
49
12 Rights and Responsibilities of the Person Seeking Accommodation
Ensure that a concern falls under any of the areas and grounds pro-tected under the [Act].
2. Inform the employer or service provider about the need for accom-modation.
3. Bring the situation to the attention of the employer or service provider, preferably in writing. Include the following information: * Explain why accommodation is required ... . * Support the request for accommodation with evidence or docu-ments ... .
* Provide medical information that explains the employee’s func-tional limitations and necessary accommodations ... .
* Suggest appropriate accommodation measures. * Indicate how long accommodation will be required.
4. Allow a reasonable amount of time for the employer or service pro-vider to reply to the request for accommodation.
5. Listen to and consider any reasonable accommodation options that the employer or service provider proposes. A person seeking accom-modation has a duty to accept a reasonable accommodation, even if it is not the one that the person suggested or prefers.
6. Consult an expert such as a human resources consultant, union repre-sentative, or lawyer if it is difficult to determine if the proposed options are reasonable.
7. Request details of the cost or other factors creating undue hardship, if the employer or service provider indicates that accommodation would pose an undue hardship. Provide more details about your needs if such information is helpful.
8. When an accommodation is provided, make a formal written agree-ment with the employer or service provider.
9. Cooperate to make the agreement work.
10. Advise the employer or service provider when accommodation needs have changed. Provide medical documentation to support these changes and assist the employer in the process of modifying the accommodation.
11. Be willing to review and modify the accommodation agreement if circumstances or needs change and the agreement is no longer working.
12. Tell the employer or service provider if the need for accommodation ends. (at 6-7)
50
What are the obligations of unions in the accommodation process?
Take an active role as a partner in the accommodation process. * Share responsibility with the employer to facilitate accommodation, includ-ing suggesting and testing alternative approaches and cooperating when solu-tions are proposed.
* Respect the confidentiality of the person requesting accommodation. * Support accommodation measures irrespective of collective agreements, unless doing so would create undue hardship.
51
What are guidelines for undue harships?
1. Financial costs
2. Size and resources of the employer
3. Disruption of operations
4. Morale problems of other employees.
5. Substantial interference with the rights of other individuals or groups.
6. Interchangeability of workforce and facilities
7. Health and Safety concerns
52
Financial costs of undue hardships are defined and follow these guidelines?
These must be quantifiable, not merely speculation.Costs must be so significant that they would substantially affect the pro-ductivity or efficiency of the employer. A tribunal would normally consider the costs to the entire organization, not just one branch or unit. The tribunal will also take into consideration the ability to amortize costs (spread them out over time), as well as any tax exemptions, grants, or subsidies that will offset anticipated losses.
53
How is disruption of operations defined (undue hardships)?
This refers to the extent to which an employer is prevented from carrying out essential business functions.
54
how is morale problems of other employees defined?
Morale problems refer to the effects of an increased workload for other employees. This might include excessive overtime, stress, sleep difficulties, or other health problems. It will not be undue hardship if co-workers are simply disgruntled and would prefer the employee was accommodated elsewhere.
55
How is interchangeability of workforce and facilities defined under undue hardships?
the ability to relocate employees to other positions on a permanent or temporary basis is a factor in evaluating undue hardship and makes it easier for larger organizations to accommodate.
56
How is health and safety concerns defined under undue hardships?
If an accommodation is potentially a safety risk, the employer must consider the level of risk and who bears the risk. If the potential harm is minor and unlikely to occur, or if the risk is primarily to the employee seeking accommodation, it is unlikely to be considered an undue hardship. The employer will be expected to consider ways of reducing the safety concern.
57
What is an employee's obligation to cooperate?
Let know for the need for accommodation.
Including responding to reasonable requests for medical documentation in the case of ongoing absence and keeping the employer informed of progress and recovery prospects.
58
How should an employer treat accommodation?
1. Gather information to determine whether a disability exists and what the prognosis for recovery is.
2. Evaluate the employee’s job to determine its physical and psychological demands to see if they can be altered without causing the employer undue hardship.
3. If the employee cannot be accommodated in their pre-disability job, thoroughly review any other available jobs.
4. Determine whether the proposed accommodation would cause the employer undue hardship
5. Monitor the situation regularly to ensure that it continues to fit the employees needs.
6. Document all facets of the accommodation process.
7. Maintain confidentiality throughout the process.
59
BLAW 3750
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Decks in class (11)
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