Law 12 - Human Rights Terms to Know

Human Right Code - Protected Areas

• Provincial and Municipal Governments

• Businesses and non-profits

• Interactions between individuals (sale, lease)

• Organisations open to the public

  • NOT PRIVATE CLUBS

Human Right Code - Protected Grounds

• Race

• Sex

• Colour

• Ancestry/Place of origin

• Marital & Family status

• Sexual orientation/gender identity

• Age

• Disability

• Citizenship

• Religion

The Commission

A “Creature of Statute” (established by the BC Human Rights Act, which is a statue)

Purposes of the Commission

1. To promote human dignity and equality in BC

2. Education for the public as to purpose and

   contents of the Code

3. Make policy recommendations to the

   government for updating matters of content

   and administration

4. Investigate and settle disputes

5. Enforce the Code

Quasi-Judicial

When the matter before the HRC goes to the Humans Rights Tribunal to adjudicate on a matter (it’s a specialized administrative tribunal that can be appealed to a higher court)

Actions the Human Rights Tribunal can take:

1. Direct that a party do what is required by the

   Code

2. Direct that a party stop violating someone’s

   rights

   Direct that the following be paid:

3. Restitution (ie; give job back; pay lost wages,

   or difference in wages/benefits)

4. Compensation (pay for expenses incurred)

5. Damages (payment for non-pecuniary loss -

   ie; for humiliation)

Discrimination

The unjust or prejudicial treatment of different types of people

Direct Discrimination

Intentional differential treatment of individual or group based on protected ground of the HRC

Constructive Discrimination

Aka “adverse effect” discrimination

A requirement which appears neutral on the surface but results in exclusion

a “Bona Fide” Requirement

Something that may be discriminatory but is genuinely required for the job

Employer have a duty to:

accommodate

Accommodation may not be required if there is:

undue hardship

Harrassment

engaging in a course of vexatious conduct that is reasonably known to be unwelcome

Entrop v. Imperial Oil

Entrop disclosed past alcohol addiction, as was required by a new company policy for all employees but particularly for those in safety sensitive positions. He disclosed a past alcohol addiction and was reassigned/demoted even though he had been sober for 7 years.

• Protected area: employment

• Protected ground: disability. Addiction is a disability as per the code. There is a duty to accommodate

Result: It can be a bona fide requirement to do drug and alcohol testing but it is not a bona fide requirement to require disclosure of past addiction

Canada AG v Thwaites

The Canadian Armed Forces dismissed Thwaites from working at sea on naval vessels. when they learned he was HIV positive even though he was healthy and fit.

• Protected area - employment, the armed forces is also a government employer.

• Protected ground - disability - HIV status

Result: Not a bona fide requirement to be HIV free as his illness did not impact his work and was not communicable to others

Brah v Subway

Sikh manager of Subway franchise had to make an application for exemption to dress code to wear turban. Was told by supervisor to “remove diaper on his head”.

• Protected area: employment

• Protected ground: Violation of his right to religion, freedom of expression.

Result: One should not have to apply for exemption.

Render v. Thyssen Krupp Elevator

Sexual harassment in the workplace - manager slapped female employee on buttocks and said “good game”.

• Protected area: employment

• Protected ground: sex, meets definition of harassment

Result: One incident of sexual harassment was grounds for termination - even after good service record of 30 years. Also the office environment, which includes joking, bantering, sometimes included inappropriate jokes and conduct, does not excuse harassment.  

Huck v. Cineplex Odeon Theatres Ltd

Huck was in a wheelchair and went to the movies - the only wheelchair accessible seats were terrible seats in front row. He was told he could transfer to a regular seat, but he wasn’t capable of this.

• Protected area: goods and services

• Protected ground: disability

Result: Cineplex Odeon has a duty provide seating that is located in a place where everyone would want to sit and they failed to meet their duty to accommodate. Since it’s a large corporation - it is not undue hardship to require them to do this.

Examples of Harassment - Sexual Harassment

unwanted physical/verbal conduct or gestures of sexual nature

Examples of Harassment - Racial Harassment

Racial comments, slurs, names, insults, etc..

comment may be innocent but still upsetting

Examples of Harassment - Corporate Liability

responsible for wrongful acts of managerial staff

Affirmative Action

differential treatment of groups or individuals to compensate for historical, social, or other forms of disadvantage (equality of opportunity)