You’ve been passed over for a job because of your disability. You’re paid less than your co-workers for similar work, based on your sex. These are examples of discrimination. You’ve been treated differently than others based on personal characteristics that are protected under the law. Learn your rights and options if someone discriminates against you in the workplace.
Which human rights laws apply in your workplace
There are federal and provincial human rights laws that protect workers from discrimination in the workplace.
The BC Human Rights Code applies to most workplaces in the province.
The guidance below focuses on your rights under BC’s human rights law. However, many of the same points apply to workers covered by the federal law.
If your situation involves federal law, contact the Canadian Human Rights Commission.
You are protected against discrimination in the workplace
“I’d been in the same position for three years, and was ready for a step up. I applied for a supervisor position. My employer told me that more responsibility would be ‘too much for a woman to handle.’ I was shocked. It made me realize discrimination is still a real problem in some workplaces.”
– Jasmine, Richmond
The law protects you from discrimination at work. An employer must not discriminate against you based on these personal characteristics:
- your race, colour, ancestry, or place of origin
- your age
- your sex, sexual orientation, or gender identity or expression
- your marital or family status
- your political belief or religion
- any physical or mental disability
- any criminal convictions that are unrelated to the job
These are called protected grounds or protected characteristics. You can’t be treated differently than others in the workplace based on a protected characteristic. If you are, you’ve experienced discrimination.
This protection applies in all aspects of employment
The protection against discrimination applies in all aspects of your employment. It applies in hiring, firing, wages, benefits, hours, and other terms and conditions of work. This means an employer cannot factor a protected characteristic into:
- not hiring you
- not promoting you
- firing you
- discriminating against you in some other way in your job
The protected characteristic does not need to be the only or main reason for a decision or action by an employer. It’s discrimination if the characteristic is a factor in your treatment. For example, if you weren’t hired in part because of your religion or sex, that’s discrimination.
The protection includes the workplace environment
Employers must provide a discrimination-free workplace. They may be liable for discrimination, including harassment, by their workers in the workplace.
The protection extends to union membership
A trade union or occupational association can’t discriminate against you, either. For example, a union can’t point to any of the protected characteristics to stop you from joining the union, to expel or suspend you, or otherwise discriminate against you.
What workplace discrimination can look like
“Interviewing for a courier job, I was asked if I had Canadian work experience. I’m pretty sure they didn’t hire me because I said no. But I had the required driver’s licence, and relevant experience from elsewhere. I learned later I had a strong claim for discrimination, as Canadian experience wasn’t relevant and necessary for the job.”
– Prem, Vancouver
Discrimination at work can take many forms. It can be direct. You’re treated differently in the workplace because of a personal characteristic, and you suffer harm. For example:
- an employer doesn’t hire a person for a job because they’re transgender
- co-workers harass a worker over their race, religion, sex or other protected characteristic (harassment is conduct a reasonable person would consider objectionable or unwelcome)
- an employer requires a worker with a drug addiction to undergo drug testing (unless the employer can justify the testing)
- an employer fires a worker because she’s pregnant
- an employer forces a worker to retire because of their age
Discrimination can also be indirect. This is trickier to spot. Here, you’re treated the same as your co-workers, but you’re still disadvantaged by a personal characteristic. This is usually because of a workplace rule or practice — written or unwritten.
For example, say you follow a religion that requires you to wear a head covering. Your employer has a rule prohibiting workers from wearing anything on their heads. The rule 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.
The employer’s duty to accommodate
If you’re disadvantaged at work because of a personal characteristic, your employer has a duty to accommodate you.
For example, a job requirement to work on a certain day may hurt someone whose religion prevents them from working on that day. Or, a person with a disability may not be able to perform a certain part of their job because of their disability. In these cases, the employer must make adjustments to accommodate these differences. They must take reasonable steps to remove the harm and support the worker to do the job. For more on this, see our information on an employer’s duty to accommodate.
An exception for a bona fide occupational requirement
An employer has one main legal defence against a worker’s claim of workplace discrimination. An employer can try to justify a rule or practice that appears to be discriminatory by showing it is based on a bona fide occupational requirement.
To use this defence, an employer must show that:
- the rule or practice has a purpose legitimately connected to the performance of the job, and
- they acted in good faith, believing the rule or practice was necessary to achieve the purpose, and
- the needs of the person discriminated against cannot be accommodated without the employer experiencing undue hardship.
For example, say you’re a construction worker. Your job requires a lot of heavy lifting. You have an accident and severely injure your shoulder. For construction work, having shoulder mobility is a bona fide occupational requirement. Your employer would likely be justified in refusing to let you work until your shoulder heals.
If someone discriminates against you
If someone discriminates against you in the workplace, you have options.
Make a human rights complaint
You can make a human rights complaint to the BC Human Rights Tribunal. The tribunal deals with complaints under the Human Rights Code. It operates like a court but is less formal. It has staff who help people resolve complaints without going to a hearing. If that’s not possible, they hold a hearing to decide if there was discrimination.
You must file a complaint with the tribunal within one year of when the discrimination happened. We explain the steps involved under “Work out the problem,” below.
If the tribunal decides your complaint is justified, it can order the employer or other person to stop discriminating. It can order that you get your job back, or be given the right to compete for a job. The tribunal can also award you money for lost income and for injury to your dignity, feelings, and self-respect.
Make an employment standards complaint
If your employer didn’t follow the Employment Standards Act, you can make an employment standards complaint. (We offer guidance on the steps involved.) You make the complaint to the Employment Standards Branch, the government office that administers the Act. That Act covers some situations that can also bring the Human Rights Code into play. For example, under the Employment Standards Act, an employer cannot fire you because you are pregnant.
Be aware, though, that if you go this route you'll only be able to claim whatever severance pay your employer owes you. You won't receive extra compensation for being discriminated against. As well, if you make an employment standards complaint, you may be barred from starting a human rights claim. For this reason, it's a good idea to get legal advice before choosing this option.
Sue for wrongful dismissal
If you lose your job because of discrimination, you may decide to sue in court for wrongful dismissal. However, the court can only award you damages for your lost wages; it can't award you any extra damages to compensate you for the discrimination. That means you're likely to collect more if you file a human rights complaint, because you can get damages for your lost wages as well as the discrimination.
If you belong to a union
If you belong to a union, one option is to ask the union to file a grievance about the discrimination.
If you complain to the Human Rights Tribunal and also pursue another option (by filing a union grievance, making an employment standards complaint, or suing the employer for wrongful dismissal), the tribunal can wait until the other process is finished before dealing with your complaint. However, the tribunal may find that the other process has adequately dealt with your claim of discrimination, and then decide to dismiss your complaint. It’s a good idea to seek legal advice on your options. There is free and low-cost legal help available.
Step 1. Discuss the problem with your employer
If you think you've been discriminated against in the workplace, as a first step, raise the issue with your employer.
Find out if there’s a procedure in your workplace for dealing with human rights complaints. Start with the human resources department, if there is one.
Write down details of the discrimination. Note what happened and when, and what was said.
When you meet with your employer, explain how the discriminatory treatment has affected you. Ask for any adjustments that would remove the harm and support you to do the job.
Approaching your employer with a workplace issue can be stressful. We offer tips for talking with your employer.
Step 2. Put your concerns in writing
If discussing the problem doesn’t help, put your concerns forward to your employer in writing. We offer tips for writing a letter to your employer.
Step 3. Consider if you have a human rights claim
To establish a discrimination claim, you need to show these elements:
- You have a personal characteristic protected from discrimination.
- Your employer’s conduct (or the conduct of another person at work) had an adverse impact on you.
- The personal characteristic was a factor in the adverse impact.
The characteristic doesn’t need to be the only or most important factor. It just needs to be a partial factor.
It’s enough if you show the facts support a “reasonable inference.” For example, if a worker who is black is disciplined more harshly than other workers whose conduct is similar, that may be the basis for a reasonable inference of discrimination based on their colour.
Step 4. File a human rights complaint
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 one year from the time the conduct occurred to file a complaint. In very limited situations, the time limit may be extended.
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 pursuing a grievance that your union has filed on your behalf.
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.
Step 5. Explore settling with your employer
Once you’ve submitted your complaint, you can try to reach a settlement. This involves you and your employer agreeing 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”). You and your employer attend, along with a tribunal mediator who helps you come to an agreement. The meeting may be in person or by phone.
If you’re able to reach an agreement, your complaint is withdrawn. If you aren’t able to agree, you can move to the next step.
Typically, the settlement process is much faster than a hearing, and involves fewer steps. It also gives you more control over the outcome.
Step 6. 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 all of the documents related to your complaint. Your employer will receive a copy of these documents. In exchange, they’ll give you documents relating to their response.
At the same time that your employer provides you with their documents, they also have the option of filing an application to dismiss your complaint without a hearing. You'll be given a deadline to respond to the application. Applications to dismiss usually involve technical legal arguments, so it's a good idea to seek legal advice before you draft your response.
Step 7. 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 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 order your employer to pay you compensation, including damages for the discrimination you suffered.
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.
In a job interview, I was asked about my religious beliefs. Is that allowed?
In a job interview, you can be asked about protected 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.
Are men and women supposed to get the same pay for similar work?
Yes. Under BC law, employers must not pay a man more than a woman for similar, or substantially similar, work. The reverse of this is also true: employers must not pay a woman more than a man for similar or substantially similar work. Whether work is similar, or substantially similar, depends on a number of things, including the skill, effort, and responsibility a job requires.
Employers can pay different wages to different people based on seniority, merit, and productivity.
Does BC’s human rights law cover job ads?
Yes. Under BC law, employers can’t advertise in connection with a job a preference, specification or limitation based on a protected characteristic. The exception is if the preference, specification or limitation is based on a bona fide occupational requirement. (See the “What you should know” section above.)
Generally, a job ad should describe the job and any skills or training necessary. It shouldn’t describe a type of person.
A related point: an employment agency can’t refuse to refer you for employment based on a protected characteristic.
Is there a mandatory retirement age in BC?
No. The Human Rights Code protects all people 19 and over from discrimination because of their age. Among other things, this means you cannot be forced 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.
Can an employer make me give up my rights under the Human Rights Code?
No. The Code does not let people agree to give up their rights. An employer cannot ask you to sign a contract that says the employer can discriminate against you.
What kind of money awards are given in human rights claims?
If a human rights tribunal decides a complaint is justified, it can order the employer or other person to pay money (compensation) to the person bringing the complaint. The tribunal can make an award for lost income (including wages and disability and other benefits) and expenses you incurred as a result of the discrimination, such as medical expenses. As well, the tribunal usually makes an award for injury to dignity, feelings, and self-respect. In most cases, these damages are under $10,000, but some damage awards have been much higher, up to $75,000.
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 workers 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.