What do I do if I’ve been discriminated against?
Do you think you’ve been discriminated against?
This blog entry sets out what discrimination is under human rights legislation, and what you can do if you’ve been discriminated against.
1) Is the discrimination illegal?
Discrimination is illegal under the laws of all provinces and territories in Canada, as well as Canadian federal law. But not all discrimination is illegal. For example, employers can discriminate against people because of skills or experience they don’t have.
The only illegal discrimination is discrimination that is prohibited under the law. In BC, for example, section 13 of the Human Rights Code says that a person can’t refuse to employ, or discriminate against a person in their employment, because of:
“the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.”
2) Does the person or employer that discriminated against you have a legal defence?
There are legal defences to human rights complaints. The most common defence used by employers is the “bona fide occupational requirement or qualification” defence. This defence basically means that the discriminatory actions the employer has made against you were made with good intentions and for a real business reason, and that “accommodating” you would bring the employer “undue hardship.”
The most important part of this defence is often the part about an employer having a duty to accommodate to the point of undue hardship.
“Accommodate” can mean lots of different things. When you’re talking about human rights in employment, “accommodating” basically means helping a person, or making exceptions for them, in order to help them to do their job. Examples of this include giving someone time off work, giving them reduced hours, or giving a part of their job they can’t do to someone else who can do it more easily.
What does “undue hardship” mean? Every case is different, and there are different things to look at. The cost of the accommodation, the size of the employer, safety issues, employee morale and mobility, and any problems that might happen because of the accommodation under a collective agreement are some things that courts and Tribunals look at. There is also a “procedural” part to accommodation, which means that an employer should ask the employee questions to get information about what kind of help the employee might need.
Your employer might also be able to defend itself by proving that you weren’t doing your part in the accommodation process. Accommodation is often called a “two-way street.” Employees have a duty to help the employer understand what accommodation is needed. This includes talking with the employer and providing medical information about the employee’s needs. (Of course, the employer cannot ask for irrelevant medical information and must respect your privacy rights as much as possible.)
3) Time limits
There are time limits to bringing complaints to human rights tribunals. In BC, for example, you have one year to file your complaint with the Tribunal.
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