Being treated unfairly because of who you are is an unpleasant experience. Under the law, this is called “discrimination”. You’re protected from discrimination in the workplace. If you’re being treated differently by your employer because of who you are, there are steps you can take.
Which human rights legislation applies to your employer?
Most employers in BC are covered by the province’s Human Rights Code. But BC employers in certain industries are covered by the federal Canadian Human Rights Act. These are laws made by the Government of Canada and they apply throughout the country. The federal law also applies to employers in the federal public service.
Both the federal and provincial laws protect employees from discrimination in the workplace.
The guidance below focuses on your rights under BC’s law. However, many of the same rules apply to employees covered by the federal law.
Your employer must not discriminate against you
Under the law in BC, an employer must not discriminate against a worker based on these personal characteristics:
- their race, colour, ancestry, or place of origin
- their age
- their sex, sexual orientation, or gender identity or expression
- their marital or family status
- their political belief or religion
- any physical or mental disability
- any criminal convictions that are unrelated to the job
If you’re treated differently based on any of these personal characteristics, it’s called “discrimination”.
The law protects you from discrimination in all aspects of your employment
“I’d been in the same position for three years, and was ready for a step up. I decided to approach my boss to discuss a promotion. He told me that more responsibility would be ‘too much for a woman to handle’. I was hurt, and began preparing a human rights claim for discrimination.”
– Jasmine, Richmond
Under the law in BC, you’re protected from discrimination in all aspects of your employment. This includes when you’re applying for a job, when you already have a job, or if you’re denied a promotion in your current job. It’s discrimination if your employer uses any of the protected grounds noted above to:
- fire you
- not hire you
- not promote you
- discriminate against you in some other way in your job
The “protected ground” — the personal characteristic that’s the basis of your claim — needn’t be the only or main reason for the decision. It’s discrimination if the ground was even a factor in your treatment. For example, if you weren’t hired partly because of your religion, and partly because you didn’t have enough related experience, that’s discrimination.
In a job interview, you can be asked about “protected ground” characteristics as long as the questions aren’t discriminatory. This will depend on the context. For example, you may be asked, as a casual icebreaker, where you’re from. But this question can’t be part of the formal interview. Our page on your privacy rights at work explains this in more detail.
The law also shields you from workplace practices that aren’t obviously discriminatory but that still negatively affect you. Where discrimination is involved, employers must do what they can to smooth the way for you. For example, if you have a temporary physical disability that makes it hard to perform your current role, your employer has a duty to accommodate you.
If you’re fired on the basis of one of the protected grounds of discrimination, you may also have a claim for “wrongful dismissal”. See our guidance on if you’re fired.
The law covers employment agencies and unions
Employment agencies and unions can’t discriminate against you, either. For example, a union can’t use any of the protected grounds of discrimination to refuse to let you join.
Unions aren’t allowed to negotiate discriminatory terms of employment. That is, the terms of any collective agreement they negotiate mustn’t be discriminatory. As well, the union can’t impede an employer’s efforts to accommodate a worker.
There are different types of discrimination
Under the law in BC, there are different ways in which your employer might discriminate against you. If your situation falls into any of these categories, you may have a human rights claim. In each case, the personal characteristic that’s the source of the discrimination must be one of the protected grounds of discrimination noted above.
You might be discriminated against directly
If your employer treats you differently because of a personal characteristic, and that treatment harms you in some way, it may be direct discrimination. Some examples of this include:
- firing a woman because she’s pregnant
- refusing to hire someone because they’re transgender
- forcing a worker to retire because of their age
You might be discriminated against indirectly
Indirect discrimination is trickier to spot than direct discrimination. Here, you aren’t treated differently than your co-workers, but you’re still disadvantaged by a personal characteristic. This is usually because of a particular workplace requirement, rule, policy or procedure — written or unwritten.
- A requirement sets out what’s needed to get the work done. For example, workers are required to arrive at work by 8:30 so the business can open to the public at 9:00.
- A rule is a statement about what to do, or not to do, in a specific situation. For example: “When workers drive a company vehicle, they cannot drink alcohol.”
- A policy is a guiding principle that explains the "way things are done around here". For example, a workplace harassment policy might explain expectations for how for workers treat each other. Policies often have an accompanying procedure.
- A procedure explains the steps to get something done — for example, the procedure to report an incident of workplace harassment and how the complaint is dealt with.
Workers may be affected differently by these rules and policies, depending on their circumstances. For example, say you follow a religion that requires you to wear a head covering. Your employer has a policy prohibiting workers from wearing anything on their heads. The policy applies to everyone at work, so in that way it seems fair. But it hits you harder than your colleagues because head-covering has another level of meaning for you.
If you’re disadvantaged at work because of a personal characteristic, your employer has a duty to accommodate you.
Your employer’s intentions
Under the law in BC, it isn’t necessary to prove that your employer intended to discriminate against you. A workplace rule or policy can still be discriminatory even if no harm was meant by it.
The “Deal with the problem” section below explains how to bring a discrimination claim.
An employer shouldn’t ask if you have “Canadian experience” unless that’s relevant and necessary for the job. Generally, it’s very difficult for an employer to prove that it is. If you’ve been denied a job because you lack Canadian work experience, you may have a claim for discrimination.
Your employer may have a valid reason to discriminate
An employer has one main legal defence against a worker’s claim of workplace discrimination. They need to show they had a valid reason to discriminate. This is also referred to as a bona fide occupational requirement.
What the employer must show
To use this defence, an employer must show that:
- there is a legitimate, job-related purpose for the conduct, and
- they acted in good faith, believing that the conduct was necessary to achieve the purpose, and
- they took all reasonable steps to avoid any negative effects on workers (they satisfied their duty to accommodate).
For example, say you’re a construction worker. Your job requires a lot of heavy lifting. You have an accident and fracture your wrist. For construction work, having strong and healthy wrists is a bona fide occupational requirement. Your employer would likely be justified in refusing to let you work until your wrist completely heals.
There are three additional defences to discrimination claims at work
There are three other specific defences an employer can lean on:
- A worker’s criminal charge or conviction is, in fact, related to the job. For example, the employer may claim the criminal behavior the worker was charged for would, if repeated, threaten the safety of other workers.
- The discrimination relates to a bona fide “seniority scheme”. Such a policy may say, for example, that younger workers will be laid off before more senior workers, whose experience presumably carries extra value. This isn’t discrimination as long as the scheme is applied in good faith (without the intent to discriminate).
- The discrimination relates to a bona fide retirement, superannuation, pension, or group or employee insurance plan.
Step 1. Discuss the problem with your employer
If you think you've been discriminated against in the workplace, as a first step, bring the issue to your employer’s attention. If you’re being discriminated against directly, complain. Explain your right to be treated equally at work (see the “Understand your legal rights” section above).
If you’re being discriminated against indirectly, let your employer know about your special circumstances. They have a duty to make changes that level the field for you (up to a point). However, this duty may not kick in if they don’t have the information they need because you haven’t given it to them. Our guidance on your employer’s duty to accommodate you has more on this.
Step 2. Keep a written record
Write down anything your employer says or does that might be discriminatory. Keep track of what happened and when, and what was said, in all conversations around the matter. This may be useful later as evidence.
Step 3. Use your employer’s internal complaint procedure (if they have one)
If dealing with your employer directly doesn’t resolve the issue, you have other options.
Find out if there’s a procedure in your workplace for dealing with human rights complaints. The human resources department, if there is one, is a great place to start. Reach out to the manager there. Explain what’s going on, and ask about next steps to take.
If you belong to a union, ask your union representative for help. They may be able to file a grievance against your employer for the discrimination. If they refuse to do so, and their reasons for refusing are discriminatory, you can complain to the Labour Relations Board or the Human Rights Tribunal. See the “Get help” section below.
Step 4. Consider if you have a discrimination claim
To establish a discrimination claim, you need to show that:
- you have a characteristic that’s one of the protected grounds under the law (see the “Understand your legal rights” section above), and
- your employer’s conduct is setting you back at work, and
- the characteristic is a factor in the setback.
The characteristic doesn’t need to be the only or most important factor. And you don’t need to prove that your employer meant to discriminate against you.
You must have evidence that the characteristic was a factor. It’s enough that the facts support a “reasonable inference”. For example, if a black employee is disciplined more harshly than other employees whose conduct is similar, that may be the basis for a reasonable inference of discrimination.
Step 5. File a human rights claim
In BC, a discrimination claim is made to the BC Human Rights Tribunal. You must fill out and submit a complaint form (select the one that applies to your situation). You can fill out the form online, or print out a paper copy.
You have six months from the time the conduct occurred to file a complaint. In some situations, the time limit may be extended.
You have options for submitting your form:
- Email the form to email@example.com (if you used the online option).
- Fax the form to 604-775-2020.
- Mail or hand deliver the form (see the “Get help” section for the address).
The Tribunal will review your complaint and decide whether to accept or reject it. The Tribunal may also defer your complaint if it could be dealt with in another way — for example, by submitting a grievance with your union.
The Human Rights Clinic may be able to help you file a complaint with the Tribunal. The Clinic may also be able to assist you at a hearing. See the “Get help” section for contact information.
Step 6. Explore settling with your employer
Once you’ve submitted your complaint, you can try to reach a settlement. This is where you and your employer have agreed on how to solve the problem. A settlement ends the complaint process. You can use one of the Human Rights Tribunal’s sample settlement agreements.
The Tribunal offers settlement services as well. You have the option of attending a settlement meeting (or “mediation”) any time during the complaint process. You and your employer will attend, along with a Tribunal mediator who will help you to come to an agreement. The meeting may be in person or by phone.
If you’re able to reach an agreement, your complaint will be withdrawn. If you aren’t able to agree, you can move to the next step.
Do your best to settle with your employer before continuing with your claim. Typically, the settlement process is much faster than a hearing, and involves fewer steps. It also gives you more control over the outcome.
Step 7. Wait for your employer to submit a response
If you don’t settle the complaint with your employer, they have a chance to respond in writing. Once the response is filed, you’ll have to disclose documents related to your complaint. These include:
- A list of documents relevant to your complaint and the remedy you want (Form 9.1).
- A copy of all the documents, unless they are privileged (protected from being shared).
- A list of witnesses you will call for the hearing (Form 9.3).
- Details of the remedy you want (Form 9.4).
Your employer will receive a copy of these documents. In exchange, they’ll give you documents relating to their response to your complaint. Your employer also has the option of applying to dismiss your complaint without a hearing.
Step 8. Attend a hearing
If you can’t reach a settlement with your employer, and your complaint isn’t dismissed, you’ll attend a hearing. A hearing requires a lot of preparation. You must gather and exchange documents. You must prepare yourself and your witnesses. At the hearing, you’ll need to prove your case.
If you’re successful, the Tribunal will order a solution (also called a “remedy”). Your employer will be ordered to stop discriminating. They may be told to give you something you were denied — for example, an assistance device to use in your workplace. The Tribunal may even order your employer to pay you compensation.
If you aren’t successful, your complaint will be dismissed. In rare circumstances, you can ask the Tribunal to reconsider its decision.
If your matter goes to a hearing, consider watching one beforehand to help you prepare. Hearings are open to the public. Check the hearing schedule to find one you can attend. Before you go, call the Tribunal to make sure the hearing hasn’t been settled.
Are men and women supposed to get the same pay for similar work?
Yes. Under the law in BC, it may be discrimination for an employer to pay a woman less than a man for similar work (the reverse is also true). What counts as “similar work” depends on a number of things, including the skill, effort and responsibility of the position.
An employer may be able to justify paying different wages to different people based on seniority, merit or productivity.
Does BC’s human rights law cover job ads?
Yes. Under BC law, employers can’t advertise a preference, specification or limitation based on one of the protected grounds. That is, unless it’s a bona fide occupational requirement, it can’t appear in the ad. (See the “Understand your legal rights” section above.)
Generally, a job ad should only describe the job and any skills or training necessary. It shouldn’t describe a type of person.
Can my employer force me to retire at a certain age?
No. Under the law in BC, it may be discrimination if your employer forces you to retire because of your age. The choice to retire is yours. However, your employer is allowed to encourage you to retire by offering you a reward or bonus to do so.
Some jobs may set age limits because of the duties involved or because of safety issues — for example, a job that requires an exceptional amount of manual labour. In that case, the age limit may be justified. This is called a bona fide occupational requirement (see the “Understand your legal rights” section).
The BC Human Rights Tribunal deals with human rights complaints against employers in the province.
The BC Human Rights Clinic provides assistance and representation to employees who need help dealing with a provincial human rights complaint.
The Canadian Human Rights Commission deals with human rights complaints against federally-regulated employers.
The Labour Relations Board can help you if you think your union has refused to file a grievance for you for discriminatory reasons.