How to Spot Indirect Discrimination

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What is indirect discrimination?

Discrimination can take many forms, including “‘indirect discrimination,” where otherwise neutral policies may have an adverse effect on certain groups of people who belong to a group protected by law from discrimination. This type of discrimination can happen unintentionally but still has a discriminatory impact.

The British Columbia Human Rights Code (the “Code”) is designed to prevent such discrimination and promote equality. The Code covers various protected grounds, including race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, and more. Under the Code, protections against indirect discrimination are provided through the prohibition of discriminatory practices and the obligation to accommodate. Any time a person feels adversely affected by another’s behaviour on these grounds, they may have a case for workplace discrimination.

In the employment context, Employers are required to:

  • Avoid Discriminatory Policies: Organizations must ensure that their policies, practices, and rules do not indirectly discriminate against individuals or groups based on protected characteristics. Organizations are encouraged to take proactive measures to promote diversity and inclusivity, including examining and addressing any potential indirect discriminatory effects of their policies or practices.
  • Provide Accommodation: If a policy or practice has a disproportionate impact on a protected group, organizations are obligated to make reasonable accommodations to eliminate the discriminatory effect, unless doing so would cause undue hardship. Employers have a duty not to discriminate against employees regarding employment and this includes taking all reasonable steps to avoid a negative effect as a result of an employee’s protected characteristic, which is called a duty to accommodate.
  • Consider Systemic Discrimination: The BC Human Rights Tribunal recognizes the concept of systemic discrimination, where seemingly neutral practices can perpetuate disadvantage for specific groups. Examples include if an employer discriminates against people because of a workplace culture, widespread behaviours, or policies or practices. Raising systemic discrimination in your complaint can affect the kind and quality of the award and remedies you can receive if you settle or go to a hearing.

Examples of indirect discrimination that can occur in workplaces

Imagine a company enforcing a strict uniform policy that requires all employees to wear identical clothing. This policy may inadvertently discriminate against employees who belong to certain religious groups that require specific attire or symbols. While the policy may appear neutral on the surface, it disproportionately affects individuals whose religious beliefs are not accommodated by the uniform requirement. This can be seen as indirect discrimination based on religion.

Another example of indirect discrimination can be if an employer establishes a shift scheduling system that requires employees to work late evenings on a regular basis. While this policy might seem neutral, it could indirectly discriminate against employees who have caregiving responsibilities, such as parents with young children or individuals caring for elderly family members. These employees might face difficulties in arranging suitable caregiving arrangements during late hours, placing them at a disadvantage compared to those without caregiving responsibilities.

In both of these examples, the discriminatory impact is not immediately obvious and might not even be intentional. However, the policies have the effect of affecting certain individuals or groups based on protected characteristics. This is why it’s important for employers to be aware of potential indirect discrimination and to ensure that their policies and practices are inclusive and do not unintentionally disadvantage certain employees.

Looking to file a human rights complaint?

It’s important to note that each case of indirect discrimination can be unique, and determining whether a situation qualifies as indirect discrimination requires a thorough understanding of the specific context. If you believe you have experienced direct or indirect discrimination, consult an experienced employment lawyer to help clarify your rights and options. If you are considering filing a human rights complaint, the best way to increase your chances of success is by talking with a lawyer about your case before you file your complaint. The knowledgeable and experienced lawyers at Labour Rights Law would be happy to discuss your case with you and provide you with the guidance you need before you proceed with filing your complaint.

DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice.  To provide legal advice on your problem, a lawyer must first understand your specific situation.

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