Human Rights Issues PDF

Human Rights Issues 7 LEARNING OUTCOMES After completing this chapter, you will be able to: Explain what constitutes discrimination under both the British Columbia Human Rights Code and th...

Human Rights Issues 7 LEARNING OUTCOMES After completing this chapter, you will be able to: Explain what constitutes discrimination under both the British Columbia Human Rights Code and the Alberta Human Rights Act. Identify the key features of these statutes, including prohibited grounds and areas of discrimination. Understand the distinction between equal pay for work of equal value and employment equity. Outline the remedies available to complainants under these statutes. State the requirements of human rights legislation during the hiring process, including how they relate to job advertisements, applications, and interviews. Understand the human rights issues raised by pre-employment testing, including medical and drug and alcohol testing. Understand the implications of human rights legislation during the course of employment, including the duty to accommodate disability, religion, sex, and family status. 201 202  Part II Legal Issues in Hiring and During the Course of Employment Explain the concept of undue hardship. Understand when on-the-job drug and alcohol testing is justifiable and when it is not. Outline the employer’s obligations with respect to workplace harassment, sexual harassment, and sexual solicitation. Understanding Discrimination and Human Rights Complaints There was a time when even the most blatant forms of discrimination were legal in Canada. Under the common law, stores could refuse service, landlords could refuse housing, and employers could refuse to hire individuals for whatever reason they chose, including race, gender, or marital status. However, over the past 60 years, every jurisdiction in Canada has enacted human rights legislation that prohibits discrimination in key social areas, including employment, services (such as stores, restaurants, hospitals, and schools), and accommo- dation (housing). Human rights requirements are a key consideration during the hiring process, and they continue to play a central role throughout the employment relationship. Human rights legislation in Alberta and British Columbia (BC) requires an employer to maintain a workplace that is free from discrimination and harassment. It must make all employment decisions, including those related to hiring, training, transfers, promotions, apprenticeships, compensation, benefits, performance evaluations, discipline, layoffs, and dismissals, on a non-discriminatory basis. Unlike the Canadian Charter of Rights and Freedoms (Charter), which applies only to government actions (a topic that was discussed in Chapter 1), provincial human rights stat- utes apply to the actions of individuals and corporations as well. Moreover, the scope of human rights law has been steadily expanding. Alberta’s first comprehensive human rights legislation was passed in 1972 with the Alberta Bill of Rights. A companion piece of legislation, the Individual’s Rights Protection Act (IRPA), was passed at the same time. The Alberta Bill of Rights was intended to protect cit- izens of the province from governmental abuse of power. The IRPA, however, was an indi- cation of the province’s new commitment to eradicating discrimination. The Act was passed as primacy legislation, meaning that it takes precedence over any other provincial legislation (unless specifically stated otherwise). The IRPA also required that a human rights commis- sion be created to educate the public, promote human rights, and administer the law. It was the first legislation in Alberta that specifically outlined prohibited grounds of discrimina- tion and initially protected primarily visible minorities. The IRPA has been amended several times. It became the Human Rights, Citizenship and Multiculturalism Act in 2000, and in 2010 it became the Alberta Human Rights Act (the Alberta Act). The Alberta Act prohibits discrimination in employment on 15 grounds. BC introduced its first human rights legislation, the Human Rights Code (the BC Code), in 1973. The current version of the BC Code came into force in November 2018. Like the Alberta Act, it is primacy legislation, so if there is a conflict between the BC Code and any other provincial legislation, the BC Code prevails (s 4). It prohibits discrimination in employ- ment on 15 grounds (if physical and mental disability are counted as separate grounds).  Chapter 7 Human Rights Issues   203 What Constitutes Discrimination? The term “discrimination” is not defined in the Alberta Act or given a single definition in the BC Code. Its meaning has, however, been addressed by the courts. Initially, courts interpreted it to mean an intentional act of exclusion—for example, the placement of an advertisement specifying that individuals of a certain ethnic background need not apply. This overt type of discriminatory behaviour—also known as “direct” or “intentional” ­discrimination—is easy to identify. However, many acts of discrimination are hidden or even unintentional: for example, policies or practices that on their face are not intended to discriminate but which have a discriminatory effect on individuals or groups. In older cases, courts did not apply human rights law to such cases of indirect or unintentional discrimination. In the 1970s and 1980s, however, courts began to recognize more indirect forms of discrimination and provide rem- edies even when there was no intent to discriminate. The courts have developed a three-part test to establish a prima facie case of discrimination. The leading case for this general test is prima facie Moore v British Columbia (Education) (2012), which sets out the test at paragraph 33. The evidence that, as it first test may be paraphrased as follows: appears, is sufficient to prove a proposition or fact, though 1. the complainant has a characteristic protected from discrimination by the human it may still be rebutted rights legislation; 2. the complainant experienced an adverse impact with respect to their employment; and 3. the protected characteristic was a factor in the adverse impact. Once a complainant has provided enough evidence to prove each of these three elements, it is up to the employer to prove that its policy, practice, or conduct is justified. If it cannot do so, the court finds discrimination and provides a remedy. FYI Systemic Discrimination: What Is It? Systemic discrimination (also called “institutional discrimination”) is one of the more complex and systemic discrimination subtle forms of indirect discrimination. It refers to the web of employer policies or practices that are the web of employer neutral on their face but have discriminatory effects. For example, a company may have a culture that policies or practices that encourages informal mentoring through sports-related activities that take place after working hours. are neutral on their face Employees with disabilities or whose family responsibilities make it more difficult for them to partici- but have discriminatory pate after hours may be less successful at building internal networks as a consequence. This, in turn, effects; also called “insti- could affect performance evaluations and opportunities for promotion. tutional discrimination” The existence of systemic discrimination is sometimes identified through numerical data. For ex- ample, data may show that there are few women in high-level positions in a particular advertising firm compared with the representation of female executives in the labour force in general. FYI Key Features of Human Rights Legislation 1. Human rights legislation applies to both the private and the public sector and to the conduct of individuals. Unlike the Charter, its application is not limited to the actions of government. (Continued on next page.) 204  Part II Legal Issues in Hiring and During the Course of Employment 2. Discrimination in employment is prohibited on numerous grounds, which are similar but not iden- tical in Alberta and BC: Alberta British Columbia race race religious beliefs religion colour colour gender sex sexual orientation sexual orientation physical disability physical disability mental disability mental disability age age Indigenous identity ancestry ancestry place of origin place of origin marital status marital status family status family status gender identity gender identity gender expression gender expression source of income political belief 3. To infringe human rights legislation, it is not necessary to intend to discriminate. 4. The effect of an employer’s action or rule matters as much as the intent. The employer has a duty to accommodate the special needs of protected individuals or groups unless doing so would create undue hardship for the employer. 5. No one can contract out of human rights legislation. For example, the negotiated terms of a col- lective agreement are void if they do not comply with the legislation. 6. Human rights legislation provides for civil remedies, such as ordering an employer to compensate employees for lost wages or mental suffering, or ordering it to change its employment policies. It does not provide for criminal penalties, such as imprisonment. 7. Human rights legislation is quasi-constitutional in that if there is a conflict between its provisions and those of another provincial statute, its requirements prevail. 8. Human rights legislation applies to every stage of the employment relationship, from recruitment through to termination. Overview of Alberta’s and British Columbia’s Human Rights Legislation The Preamble and Purpose of the Legislation The Alberta Act opens with a preamble that sets out the spirit and intent of the legislation. As with most provincial human rights statutes, the preamble was inspired by the United Nations 1948 Universal Declaration of Human Rights, which recognizes the “inherent dig- nity and … equal and inalienable rights of all members of the human family” and provides for equal rights and opportunities without discrimination to create a climate of under- standing and mutual respect. The Alberta preamble states:  Chapter 7 Human Rights Issues   205 WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all persons is the foundation of freedom, justice and peace in the world; WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in: dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation; WHEREAS multiculturalism describes the diverse racial and cultural composition of Alberta soci- ety and its importance is recognized in Alberta as a fundamental principle and a matter of public policy; WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all Albertans should share in an awareness and appreciation of the diverse racial and cultural com- position of society and that the richness of life in Alberta is enhanced by sharing that diversity; and WHEREAS it is fitting that these principles be affirmed by the Legislature of Alberta in an enact- ment whereby those equality rights and that diversity may be protected. In BC, these basic principles are laid out in section 3 of the BC Code, which defines the purpose of the legislation as follows: (a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia; (b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights; (c) to prevent discrimination prohibited by this Code; (d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code; (e) to provide a means of redress for those persons who are discriminated against contrary to this Code. The preamble to the Alberta Act and section 3 of the BC Code do not contain spe- cific legislative requirements. However, they can affect the interpretation of the legislation. Where an issue is ambiguous and the legislation doesn’t provide clear direction, courts and tribunals often use these introductory statements as a guide to interpretation of the statutes. The scope of human rights protections is interpreted quite liberally in both provinces because of the preamble and purpose, and also because both statutes are considered ­remedial legislation. This means that they exist to right a societal wrong, not to allocate remedial legislation blame or punish an offender. In employment cases, courts and tribunals have consistently legislation that exists to affirmed that such remedial legislation should be interpreted “in a broad and generous man- right a societal wrong, ner,” with any uncertainty in the meaning of a provision resolved in favour of the employee. not to allocate blame or Accordingly, the emphasis is generally on conciliation and compensation for the victims. punish an offender An employer who violates an employee’s human rights may be required to alter its policies or practices, may be subject to a public declaratory order that they have violated human rights, or may be ordered to pay restitution to an individual who files a complaint against it, but there are no criminal penalties such as imprisonment. Areas Covered The statutes of both provinces provide that everyone has the right to be free from discrimin- ation in five main areas of social activity: 1. publications and notices; 2. goods or property, services, accommodation (housing), and facilities; 3. tenancies; 206  Part II Legal Issues in Hiring and During the Course of Employment 4. employment practices, including equal pay, and advertisements; and 5. membership in trade unions and occupational associations. The legislation also protects those who file a human rights complaint from retaliation through what are known as “anti-reprisal clauses.” Such clauses are meant to give individ- uals the comfort to raise concerns and complaints without fear of discipline, termination, or other employment-related consequences. Although employment is only one of the five areas covered by the legislation, the ma- jority of complaints arise in the employment context. In 2022 – 23, 78 percent of the com- plaints in Alberta were related to employment (Alberta Human Rights Commission, 2023), and for the period 2022 – 23, 50 percent of the complaints in BC were related to employment (BC Human Rights Tribunal, 2023). The term “employment” has been interpreted broadly to include full- and part-time employment; contract work; temporary work; probationary periods; and, in some cases, volunteer work. Prohibited Grounds of Discrimination in Employment Section 7 of the Alberta Act provides that every person is entitled to equal treatment with respect to employment, without discrimination on the basis of race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ances- try, place of origin, marital status, source of income, family status, or sexual orientation. Prior to 2009, sexual orientation was not named as a specific ground in the Alberta Act. The addition of sexual orientation to the Alberta legislation was the result of a Supreme Court decision that determined Alberta’s legislation was in and of itself discriminatory because it failed to protect an identifiable group that is frequently subjected to prejudice (see the discussion of Vriend v Alberta in Chapter 1). Section 13 of the BC Code lists the grounds of discrimination related to employment. They overlap with the Alberta grounds, with some differences. The BC statute does not include source of income as a ground of employment discrimination, but it does include political belief and conviction of a criminal or summary conviction offence that is unrelated to the employment or the intended employment of that person. Each of the prohibited grounds is considered below. Because the BC Code does not define the grounds it lists, the information here is based on definitions from section 44 of the Alberta Act and supplemented with descriptions from the Alberta Human Rights Commission (2024b). The following descriptions include some illustrative cases from BC and point out grounds that the BC Human Rights Tribunal (BC Tribunal) and courts have interpreted differently from Alberta or other jurisdictions. 1. Race. Race is not specifically defined in the BC or Alberta legislation but can be considered as a group of people who are related by a common heritage. It can also be related to other grounds, such as colour, place of origin, or ethnic origin, and may include language as an element of the complaint. 2. Religious beliefs. This ground protects people from discrimination on the basis of their religion or faith. The Alberta Act and the BC Code prohibit one person from attempting to force another to accept or comply with a particular religious belief or practice. The legislation may also require an employer to take positive meas- ures, such as allowing breaks for prayer at certain times. Religious beliefs and prac- tices are protected, even if they are not essential elements of a particular religion,  Chapter 7 Human Rights Issues   207 ­ rovided they are sincerely held. The Alberta Act also specifically recognizes that p religious beliefs include “native spirituality.” 3. Colour. Colour means the colour of a person’s skin. Discrimination on the ground of colour may encompass racial slurs, jokes, stereotyping, and verbal or physical harassment. 4. Gender, gender identity, and gender expression. Discrimination on this ground extends to male, female, and transgender individuals, as well as gender identity and gender expression. It also protects people who are pregnant. It is the ground cited in sexual harassment cases. The Alberta Human Rights Commission states that the term “transgender” refers to people who identify as transgender or transsexual and refers to the Ontario Human Rights Commission’s definition of gender identity, which states: Gender identity is linked to each person’s internal and individual experience of gender. It is a person’s sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from their birth-assigned sex. Trans or transgender: An umbrella term that describes people with diverse gender iden- tities and gender expressions that do not conform to stereotypical ideas about what it means to be a girl/woman or boy/man in society. “Trans” can mean transcending beyond, existing between, or crossing over the gender spectrum. It includes but is not limited to people who identify as transgender, transsexual, cross dressers or gender non-conforming (gender variant or gender queer). Transsexual: A person whose gender identity differs from their sex assigned at birth. They may or may not undergo medically supportive treatments to align their bodies with their gender identity, such as hormone therapy, sex reassignment surgery or other procedures. They may also undertake other changes to align their external attributes and appearance with their gender identity. (Ontario Human Rights Commission, 2024) Historically, in BC, the term “sex” was used instead of “gender.” Although tri- bunals and courts in BC and Alberta interpreted “sex” to prohibit discrimination against transgender people, calls by transgender advocates for an explicit reference to transgender and gender-variant people in the legislation became louder in 2015, culminating in the BC government adding gender identity and gender expression to the BC Code in 2016. The BC Tribunal defines gender identity and gender ex- pression as follows: Gender expression is about how a person presents their gender. It includes how a person acts and appears. It can include dress, hair, make-up, body language, and voice. How a person presents their gender may not reflect their gender identity. Gender identity is a person’s sense of their gender, including man, woman, transgender or non-binary. For some people, gender identity is fixed. For others, it is fluid. Gender identity or expression can also include a person’s name and pronoun, such as he, she or they. (BC Human Rights Tribunal, 2024) The first time the BC Tribunal rendered decisions relating to the ground of gender expression and gender identity was in 2018. The Case in Point, Nelson v Goodberry Restaurant Group Ltd, provides a good example of how the BC Tribunal approaches discrimination based on gender expression and identity. 208  Part II Legal Issues in Hiring and During the Course of Employment Discrimination Based on Gender Expression and Identity CASE IN Nelson v Goodberry Restaurant Group Ltd, 2021 BCHRT 137 POINT Facts Jessie Nelson is a non-binary, genderfluid, transgender person who uses they/them pronouns. They worked as a server for Buono Osteria, a restaurant run by Michael Buono and Ryan Kingsberry. Nelson was in the probationary period of employment. Brian Gobelle was the bar manager. During their employment, Gobelle persistently referred to Nelson with she/her pronouns and with gendered nick- names like “sweetheart,” “honey,” and “pinky.” Nelson asked Gobelle to stop, but Gobelle did not. They asked management to intervene and were told to wait. On their final day of work, Nelson again tried to speak to Gobelle about this issue and the discussion grew heated. Four days later, Nelson was fired, despite recent positive reviews about their performance. Pressed to explain the termination, ­Kingsberry told Nelson that they had simply come on “too strong too fast,” that they had “made people uncomfortable,” and that they were just not “a good fit” (at paras 1, 75). Relevant Issues Whether Gobelle’s conduct toward Nelson amounted to discrimination. Whether the employer’s response was reasonable/appropriate, and whether the complainant’s gender identity and expres- sion were factors in the termination of their employment. Decision The BC Tribunal found first, that from a human rights perspective, the fact the employee was in the probationary period was irrelevant. While an employer may normally terminate a probationary em- ployee without cause or notice, the employer cannot opt out of their duties under human rights legis- lation. They cannot terminate an employee for reasons connected to protected grounds. Second, they found that Nelson’s gender identity was a factor, if not the main factor, in their termination. Further, Nelson was terminated because of the efforts they made to address the discrimination. Citing Van- derputten v Seydaco Packaging Corp (2012), the BC Tribunal noted that where an employee is confron- tational or aggressive because of a discriminatory work environment, discipline for that aggression is a violation of the BC Code. The BC Tribunal also addressed the adverse impact of persistent use of inappropriate pronouns and nicknames: Like a name, pronouns are a fundamental part of a person’s identity. They are a primary way that people identify each other. Using correct pronouns communicates that we see and respect a person for who they are. Especially for trans, non-binary, or other non-cisgender people, using the correct pronouns validates and affirms they are a person equally deserv- ing of respect and dignity. Nelson was awarded $30,000 for injury to dignity, feelings, and self-respect. The employer was further ordered to add a statement to its employee policies that affirms every employee’s right to be addressed with their own personal pronouns and to implement mandatory training for all staff and managers about human rights in the workplace. The Nelson case is particularly helpful for several reasons. First, it is instructive with respect to why persistent, inappropriate use of pronouns and nicknames causes harm. It highlights the important principle that it is the impact, not the intention of an action or a policy, that is relevant in discrimination cases. That is not to say that intention does not matter—intention can mitigate or exacerbate the harm caused by misgendering. Second, it reiterates that disciplining or discharging an employee for reacting negatively to discrimination is a form of retaliation and therefore a vio- lation of human rights legislation. 5. Disability. In the Alberta legislation, both physical and mental disability are exten- sively defined in section 44 of the Act. A physical disability is any degree of physical  Chapter 7 Human Rights Issues   209 disability, infirmity, malformation, or disfigurement that is caused by injury, birth defect, or illness. This includes, but is not limited to, epilepsy; paralysis; amputa- tion; lack of physical coordination; visual impairment; hearing impediment; speech impediment; or reliance on a service dog, wheelchair, or other assistive device. Tri- bunals have also found that weight can be a physical disability. Mental disability is defined as any mental, developmental, or learning disorder, regardless of the cause or duration of the disorder. It is also generally accepted that employers cannot discriminate on the basis of a “perceived disability.” For example, in a case about the Canada Border Ser- vices Agency’s refusal to hire an overweight BC man, the Canadian Human Rights Tribunal (Canadian Tribunal) held that the employer had discriminated against a worker on the basis of “perceived obesity”—even though his weight was not a real physical disability, since it had no effect on his ability to do the job (Turner v Canada Border Services Agency ). Both provinces recognize that there will be situations where the nature of a dis- ability prevents an individual from performing a job. Section 7(3) of the Alberta Act and section 13(4) of the BC Code indicate that an employer may make an employment decision that is discriminatory, provided that the decision is based on a bona fide occupational requirement (BFOR). For example, neither statute would bona fide occupational require an employer to hire a blind school bus driver, because sight is a fundamental requirement (BFOR) ability necessary to perform the job. Minor, temporary illnesses such as the com- standard, rule, or qualification mon cold or flu are not considered disabilities (see, for example, Goode v Interior that is necessary to carry out Health Authority ). the duties of a particular job; employers may legitimately 6. Marital status. Marital status is defined as being married, single, widowed, divorced, discriminate against employ- separated, or living in a conjugal relationship outside marriage. It is particularly rel- ees who cannot perform a evant in the area of spousal, pension, and survivor benefits. Prior to the revisions task even if their inability to in 2009, the Alberta Act defined marital status as “being married, single, widowed, perform is related to a pro- divorced, separated or living with a person of the opposite sex in a conjugal relation- tected ground; also referred ship outside marriage” (emphasis added). This clause, like the exclusion of sexual to as a bona fide occupational orientation discussed above, was corrected to align the Alberta legislation with fed- qualification (BFOQ) erally protected rights to same-sex marriage, as set out in the federal Civil Marriage Act and supported as constitutional in the Supreme Court of Canada’s 2004 decision in Reference re Same-Sex Marriage. 7. Ancestry. Ancestry means belonging to a group of people with a common heritage. 8. Place of origin. Place of origin refers to a country or region of birth, including a region in Canada. 9. Age. In Alberta, age is defined in the Act as 18 years or older. Therefore, anyone over 18 can make a complaint based on this ground. For example, the Alberta Act protects a 19 year old who is denied a position because of negative stereotypes about teenagers as well as a 57 year old who is rejected because he does not “fit the company’s youthful image.” Anyone under the age of 18 can file a human rights complaint on any ground except age. Before January 2018, age was not a protected ground in the areas of goods, services, accommodation or facilities, and tenancy. Exemptions still exist for age-restricted condominiums, cooperative housing, and mobile home sites that existed prior to January 1, 2018, as well as for seniors-only housing and programs that provide benefits to minors or seniors, such as reduced bus fares. 210  Part II Legal Issues in Hiring and During the Course of Employment In the BC Code, age-based discrimination is prohibited for anyone 19 years of age or older. An employee under the age of 19 may still make a discrimination com- plaint based on another prohibited ground, such as race or disability. 10. Family status. In Alberta, family status is defined as “being related to another person by blood, marriage or adoption” (at para 44(1)(f)). It also includes family type (e.g., single parent) as well as who is in a family. The BC Code does not define family status. Family status is a quickly evolving area of human rights law with multiple cases coming before the courts from varying jurisdictions. The struggle has been to de- velop a common test to determine when family status discrimination has occurred. Canada (AG) v Johnstone and British Columbia (Human Rights Tribunal) v Gibral- tar Mines Ltd, discussed later in this chapter, illustrate the ongoing evolution of the jurisprudence. 11. Source of income. Source of income is defined in the Alberta statute as “lawful source of income” (at para 44(1)(n)). This ground is intended to protect individ- uals whose source of income might attract social stigma—for example, recipients of social assistance, disability benefits, or seniors’ supplements. Income that is not a source of stigma is not covered by this section of the Alberta Act. The BC Code does not include source of income as a ground of discrimination in the area of employment. 12. Sexual orientation. This ground protects people based on a person’s actual or pre- sumed sexual orientation, which can include heterosexual, gay, lesbian, or bisexual, among others. It is particularly relevant in the area of spousal, pension, and survivor benefits. It includes protection from differential treatment on the basis of a person’s actual or presumed sexual orientation. 13. Criminal record. The BC Code does not allow employers to discriminate against someone because they have “been convicted of a criminal or summary convic- tion offence that is unrelated to the employment or to the intended employment of that person.” As with other grounds, there is an exemption for BFORs under ­section 13(4). One issue that arises is whether an employer may refuse to preserve the employment status of an employee who is unable to work because they are serv- ing a prison sentence. There have been a number of cases where employees have alleged discrimination in the latter situation if the employer has been unwilling to hold their jobs for them until they are released. This argument was rejected by the BC Court of Appeal in the 2000 decision BC Human Rights Commission v BC Human Rights Tribunal. In its decision, the Court cited the obiter dicta (commen- tary apart from the main decision) of the trial court judge, who said: 53. The intent of the legislation is to protect persons convicted of criminal offences un- related to employment from the stigma attaching to the fact of conviction or record of conviction preventing the person from either continuing in their present employment or obtaining new employment. 54. The legislation on its face does not support the view it was intended to preserve the employment status of a person who is absent from work to serve a sentence of incarcera- tion imposed because of their intentional criminal conduct. (at para 24) Criminal record is not listed as a ground of discrimination in the Alberta Act.  Chapter 7 Human Rights Issues   211 Additional Grounds of Discrimination Equal Pay for Equal Work In addition to the grounds of prohibited discrimination listed in section 7, the Alberta Act protects individuals in the area of equal pay under section 6. When employees of any sex perform the same or substantially similar work, they must be paid at the same rate. Furthermore, the employer is not allowed to reduce another employee’s salary to meet the requirements of the legislation. The BC Code has a similar provision in section 12, although section 12(3) states that a wage difference between employees of different sexes that is based on a factor other than sex is permissible, provided that the factor reasonably justifies the difference. The requirement to provide equal pay for equal work has existed for over 55 years, but before this requirement, it was common for men and women to receive different rates of pay even when they were performing the same job. To fall within the equal pay for equal work protection, the work of one employee must be substantially similar (but need not be identical) to the work of another. For example, male and female cooks working in the same restaurant must receive the same rate of pay, subject to the exceptions set out above, even though one makes salads and the other makes des- serts. Similarly, a retail clothing store cannot reasonably argue that its female and male sales assistants receive different rates of pay because they work in separate sections of the store and therefore do different jobs. Section 12(2) of the BC Code specifies that “the concept of skill, effort and responsibility must … be used to determine what is similar or substantially similar work.” To prove a violation of the equal pay for equal work provisions, there is no need to show that an employer intended to discriminate. The law applies wherever women and men per- form similar work but receive different rates of pay for reasons other than the exceptions noted above. As with other standards under the BC Code or the Alberta Act, equal pay for equal work is enforced by an individual filing a complaint with the BC Tribunal or the Alberta Human Rights Commission (though BC employees have the option of filing a claim in court). What Is Equal Pay for Work of Equal Value? Pay equity, or “equal pay for work of equal value,” is a relatively recent concept that requires employers to compare totally different jobs and ascertain whether they are equal in value. The only jurisdictions in Canada that impose comprehensive compliance obligations on employers to achieve pay equity are those that are federally regulated and employers in Ontario and Quebec under their respective Pay Equity Acts. The federal Pay Equity Act was introduced in October 2018. It requires employers in the federal sector with ten or more employees to undertake a pay equity review and analysis to ensure they are providing equal pay for work of equal value. The Act requires that employers establish a pay equity plan that includes (1) an analysis of gender predominance of job classes, (2) estimates of the value of work performed by each job class, and (3) a comparison of pay between predominantly male and predominantly female job classes of similar value. Neither the BC Code nor the Alberta Act actually uses the term “equal pay for work of equal value.” Instead, BC uses the term “for similar or substantially similar work” (s 12(1)) and Alberta uses the wording “the same or substantially similar work” (s 6(1)). In both 212  Part II Legal Issues in Hiring and During the Course of Employment provinces, a comparison is made between the value of the jobs, not their content. Neither have assessment and planning requirements like those in the federal Pay Equity Act. Pay equity arose from the concern that equal pay for equal work laws would never be able to achieve gender equality because, typically, men and women did not perform substantially similar work. Historically, women occupied relatively low-paying jobs collectively known as the “pink collar ghetto.” Pay equity is premised on the idea that these jobs are poorly paid because they are primarily performed by women. In other words, the labour market has consistently undervalued jobs dominated by women. The purpose of pay equity, therefore, is to reduce the wage gap between men and women by requiring employers to compare the underlying value of jobs performed predominantly by men with those performed predominantly by women. Pay for female-dominated jobs is then based on their value in relation to the value of male-dominated jobs, rather than on the value assigned to them by the labour market. This can be a challenging task, and the process required by the legislation is necessarily technical and complex. IN THE NEWS The Battle Starts at the Top: How Canadian Companies Can Close the Gender Pay Gap Female faculty members at the University of British Columbia, the University of Guelph, and ­McMaster University received $3,000 per year raises after salary audits at the universities found they were being paid less than their male colleagues. Efforts such as these are praised as Canada’s gender wage gap remains relatively unchanged from year to year. “The notion of [patriarchy] is so pervasive throughout our values and culture, and it also shows up in policies, programs and laws … it’s not an easy thing to overcome and it will take a long time,” said Anil Verma, a professor of industrial relations and human resource management at the ­Rotman School of Business. “The good news is that we’re making progress.” But progress is slow. Canadian women earn 84 cents for every $1 earned by men. For women who are Indigenous, living with a disability, racialized, or newcomers to Canada, the gap is even larger. Leadership commitment is the key to closing the gender pay gap, according to Verma. “The battle starts at the top,” he notes. “The leader of the organization has to send a clear mes- sage through communication and through action to demonstrate that this is an ‘equal opportunity’ company.” Once leadership is on board, employers should speak with their employees on an individual level. Human resources departments responsible for recruitment, hiring, training, performance appraisal, and compensation can be key partners. Charlotte Yates, provost and vice-president at the University of Guelph, says that a major barrier to closing the pay gap is that bias most often creeps in incrementally, not explicitly. This may include bias related to career arcs for women who may have different family and social obligations. It also includes assumptions about what leadership looks like. “For example, the characteristics we think are successful, tend to also … be male characteristics. More aggressive, more assertive, more likely to say ‘I’m the right person for this,’” says Yates. Women are less likely to behave in these ways, and the impact on pay equity is surprising. SOURCE: Adapted from Collie, 2019. New legislation introduced in BC targets the matter of pay equity by imposing pay trans- parency and reporting obligations on certain employers. The Pay Transparency Act (2023): requires all employers to specify the expected salary or wage range for their public job postings;  Chapter 7 Human Rights Issues   213 prohibits all employers from seeking pay history information about a job applicant by any means, whether directly from the applicant or through a third party, unless the pay history information is publicly accessible; prohibits all employers from adversely affecting, or threatening to adversely affect, employ- ees who make inquiries to the employer about the employee’s pay, disclose their pay to co-workers or potential job applicants, make inquiries to the employer about a pay trans- parency report or information contained in a pay transparency report, ask the employer to comply with the employer’s obligations under the Act, or make a report to the director in relation to the employer’s compliance with the employer’s obligations under the Act; requires “reporting employers” to prepare and publish a “pay transparency report.” Reporting employers are: government employers and certain government agencies, namely British Columbia Housing Management Commission, British Columbia Hydro and Power Authority, British Columbia Lottery Corporation, British Columbia Transit, Insurance Cor- poration of British Columbia, Workers’ Compensation Board; and private sector employers with the following number of employees on January 1 of the applicable year: (a) for 2024, 1,000 or more; (b) for 2025, 300 or more; (c) for 2026, 50 or more; (d) for a year after 2026, more than the lesser of 49 and any prescribed number. Reporting employers will be required to prepare their pay transparency report on or before November 1 of each year. The required content of a pay transparency report is speci- fied by regulation and includes information concerning median and average wages by gen- der for different job categories or levels, wage ranges by gender for different job categories or levels, and the distribution of employees across pay bands by gender, as well as an explana- tion of factors contributing to pay gaps (e.g., experience, education, job roles, performance) and steps the employer intends to take to address any identified pay disparities. Pay transparency reports must be published on the reporting employers’ websites. Those reporting employers who do not have a website are required to post a copy of the pay trans- parency report in their workplace so that it is available to the employees and provide a copy to members of the public upon request. The intent of the transparency and reporting requirements is to encourage employers to adopt a purposeful and well-planned approach to compensation. When compensation practices are publicly visible and pay equity gaps are identified, employers are bound to feel compelled to take action to address discrepancies, and it becomes more difficult to allow discriminatory pay practices to persist. Employment Equity employment equity addresses the broad social Although the two terms are often used interchangeably, employment equity is not the same problem of the underrepre- as pay equity. Employment equity addresses the broad social problem of the underrepresenta- sentation of certain groups tion of certain groups of people, such as visible minorities and people with disabilities, in most of people, such as visible workplaces, especially in better-paid and higher-level jobs. Neither Alberta nor BC has legisla- minorities and people with tion that addresses employment equity. However, BC has legislation that addresses it indirectly: disabilities, in most work- section 42 of the BC Code protects voluntary employment equity programs from claims of dis- places, especially in better- crimination (see below under the heading “Exemptions: Where Discrimination Is Allowed”). paid and higher-level jobs 214  Part II Legal Issues in Hiring and During the Course of Employment In 1986, the federal government enacted the Employment Equity Act, which requires large federally regulated employers to implement employment equity programs in their workplaces. Although this federal Act is not covered in the current textbook, under the Federal Contractors Program provincially regulated companies with 100 or more employees that contract with the federal government for business worth $1 million or more must com- mit to implementing employment equity and are encouraged to seek additional information on the employment equity requirements contained in the program. FYI Strategies for Making Workplaces More Inclusive Organizations that are most successful with employment equity link the full participation of desig- nated group members to their business strategy. The following is a sampling of strategies that diver- sity award–winning employers in Canada have adopted:   1. partnering with outside organizations to find job candidates who are hard to reach through trad- itional recruitment strategies;   2. holding equity-awareness sessions for recruiters;   3. publishing and displaying recruitment materials in a variety of languages;   4. providing tools to help employees with disabilities;   5. surveying employees on whether they are treated respectfully and fairly at work;   6. recognizing candidates who have obtained their qualifications and experience in non-traditional ways;   7. building diversity training into management/supervisory preparation, including a training pro- gram on bias-free interviewing;   8. focusing on retaining employees from designated groups by incorporating a diversity com- ponent into their succession planning program;   9. hosting leadership seminars and networking breakfasts for senior-level female and minority employees; and 10. providing paid internships to people with disabilities. Discrimination Through Reprisal The Alberta Act provides that people have the right to enforce their rights under the Act without reprisal. An employer may not retaliate against someone for making or attempting to make a complaint under the Act; giving evidence or participating in a proceeding under the Act; or assisting in any way with an investigation, settlement, or prosecution. The Act also prohibits anyone from making frivolous or vexatious complaints that are motivated by malice. BC’s legislation similarly provides parties with protection from “retaliation” after attempting to assert their rights under the BC Code (s 43). Providing protection from repri- sals for exercising rights under the legislation is important. Without this protection, it is likely that many legitimate complaints would go unreported out of fear of the consequences an employee might face. Discrimination Not Covered by the Alberta Act or BC Code To engage the protection of the Alberta Act or the BC Code, the discriminatory treatment must be based on one of the prohibited grounds. Although the grounds of prohibited dis- crimination are numerous and broadly defined, they are not exhaustive. Someone who is discriminated against on the basis of a ground not covered, such as social status, cannot file  Chapter 7 Human Rights Issues   215 a complaint under the Alberta Act or the BC Code. Similarly, discrimination on the basis of physical appearance, for example, does not infringe the Alberta Act or the BC Code unless it touches on a prohibited ground, as would be the case if an employer discriminated against a person who wears a nose ring for religious reasons or who has a perceived disability that has more to do with appearance (e.g., weight in the Turner v Canada Border Services Agency decision mentioned above). The prohibited grounds of discrimination in other provinces are similar but not identical to the grounds in Alberta and BC. For example, some provinces, such as Quebec, prohibit discrimination on the basis of assignment, attachment, or seizure of pay. Others do not include all the grounds found in Alberta; for example, neither BC nor Ontario includes source of income as a prohibited ground of discrimination in the area of employment. Exemptions: Where Discrimination Is Allowed The right to be free from discrimination in employment on the basis of the grounds dis- cussed above is not absolute. The BC Code and the Alberta Act set out exemptions where even intentional discrimination is permissible. Unlike the legislation of some other jurisdictions, the Alberta Act identifies very few specific exemptions. Instead it relies on the general defences to discrimination found in sec- tions 7(3), 8(2), and 11 of the Act. Sections 7(3) and 8(2) allow an employer to discriminate in advertising, interviewing, or hiring if the reason is a BFOR. Section 11 allows discrimin- ation as long as it is “reasonable and justifiable” in the circumstances. For example, a fitness club may hire only male attendants to work in the men’s locker room. However, in such instances, the employer must consider whether accommodation could be made to enable a non-binary person or a woman to work in the position. If working in the men’s locker room is a minor part of the job, it should be determined whether the job could be altered to ac- commodate non-male candidates. Section 7(2) of the Alberta Act also contains special exemptions on the grounds of age and marital status for bona fide retirement plans, pension plans, or employee insurance plans. This allows insurance organizations to opt out of providing employees over a speci- fied age with a pension or insurance plan and allows them to offer different plans to employ- ees who are single rather than married. However, the age-based discrimination currently allowed in Alberta may come under fire at some point. A 2018 Ontario Human Rights Tribunal (Ontario Tribunal) decision in Talos v Grand Erie District School Board ruled that age-based distinctions in pension, benefit, and insurance plans for employees aged 65 and older are a violation of the Charter. The ruling stated that denying protection to workers aged 65 and older without regard to individual circumstances devalues the contributions of older workers and entrenches the stereotype that their labour is worth less. The Ontario Tribunal further held that this type of age discrimination could not be justified because there was actuarial evidence that it was not cost prohibitive to provide coverage to older workers and the decision to exclude them was arbitrary and not within a reasonable range of choices. Similar to the Alberta Act, the BC Code allows employers to discriminate on any of the grounds listed so long as the employer’s “refusal, limitation, specification or preference” is based on a “bona fide occupational requirement” (s 13(4)). The BC Code also allows certain organizations to grant “preference” to members belonging to “an identifiable group or class of persons.” These identifiable groups or classes match the categories of persons 216  Part II Legal Issues in Hiring and During the Course of Employment discussed above with three exceptions—family status, sexual orientation, and conviction for an offence are not included. The exemption is granted where the organization has “as a pri- mary purpose the promotion of the interests and welfare” of that identifiable group or class of persons and is “not operated for profit” (s 41). An obvious example of this is an agency that provides relief counselling to sexually abused women and hires only female staff. Special (Affirmative Action) Programs in British Columbia Section 42 of the BC Code permits discrimination in the case of persons disadvantaged because of race, colour, ancestry, place of origin, physical or mental disability, or sex. Under this exemption, an employer may implement a special program to relieve or promote people who typically suffer from employment discrimination on the basis of those pro- employment equity hibited grounds. The BC Code identifies this special program as an employment equity program program. For example, where the employer has a bona fide affirmative action program to a special program to relieve hire someone from a First Nations background, the employer may discriminate in favour or promote people who of people who fall within that category. This provision is consistent with sections 6(4) and typically suffer from employ- 15(2) of the Charter. ment discrimination on the basis of prohibited grounds Making a Human Rights Complaint Provincial human rights tribunals have responsibility for accepting, screening, mediating, and deciding complaints made under the applicable human rights legislation. An employee who wants to file a claim of discrimination or harassment may obtain an application form from the website of the Alberta Human Rights Commission and BC Tribunal. In both Alberta and BC, complaints should be filed within one year of the alleged discriminatory incident. Complaints in Alberta are assessed for completeness and to ensure the Alberta Human Rights Commission has jurisdiction before they are sent to the respondent, who is required to respond within a specified period. If the Commission does not have jurisdic- tion, the complaint has no prospect of success, or if it was filed for improper motives, it may be dismissed at this stage. The BC Tribunal similarly will review whether the complaint is filed within the statutory timeline and sets out alleged discrimination pursuant to the BC Code before notifying the respondent. If a complaint is not dismissed at this earlier stage by the Alberta Human Rights Commission or the BC Tribunal, there is normally an attempt to settle the dispute before going to a hearing. If conciliation is not successful through informal settlement discussions or mediation (a service provided by the BC Tribunal), a case management meeting is held and the parties prepare for a hearing. A human rights hearing is quite similar to a hearing in the court system. The parties pres- ent documentary evidence and call, examine, and cross-examine witnesses. They may be represented by lawyers if they wish. The case is heard by a panel (also called a tribunal). The panel generally follows similar rules about the types of evidence it accepts, although it has more latitude than a court because the parties involved are often unfamiliar with courtroom processes and standards. Hearings are generally open to the public, although they may be heard privately if requested and if the panel feels there is good reason. At the end of a hearing, the panel may give an oral decision, but will also provide a writ- ten decision at a later date. Decisions from human rights panels have the same force and effect as a court decision. If either party is unhappy with the outcome of their case, they can file for a reconsideration of the decision by the panel. This option is only available in  Chapter 7 Human Rights Issues   217 limited circumstances. For example, a party may apply where there are new material facts or evidence that could not reasonably have been obtained earlier or where the decision is in conflict with established jurisprudence and it involves a matter of public importance. Human rights complaints that arise from a matter covered by a collective agreement are usually heard by an arbitrator under the grievance procedure of the collective agreement rather than by a human rights panel, although there is nothing that prevents an individual from filing a complaint against an employer under both jurisdictions. In Alberta, when a complaint is filed in more than one forum, either party can apply for a marshalling order through the Alberta Labour Relations Board. Where the issues and fact situation of the complaints filed in multiple forums are substantially similar, the Board may make a deter- mination as to which forum will hear the case. An employee covered by a collective agree- ment may also file a human rights complaint against their union. Although human rights panels are not courts of law, some basic principles regarding civil proceedings still apply. Here are some things to keep in mind: Both sides must be given notice of the proceedings and must be given an opportunity to be heard before the decision is made. Hearings can proceed without the attendance of an affected party if notice was given and the party failed to show up. The complainant bears the initial burden of proof—that is, they must be able to show that discrimination occurred, after which point the respondent has the burden of showing that the discrimination was a BFOR or that its duty to accommodate would have caused undue hardship. The burden of proof is the lower civil standard of “proof on a balance of probabilities,” not the criminal one of “proof beyond a reasonable doubt.” In BC, there is no automatic right to appeal the panel’s decision. A party must have valid grounds to have the decision reviewed by the BC Supreme Court. In Alberta, the Act includes the right to appeal to the Court of King’s Bench. Higher courts generally have three options on appeal. They may confirm the panel’s decision, reverse or alter the deci- sion and order specific remedies, or remit the matter back to the panel for reconsideration. Remedies Section 32(1) of the Alberta Act allows a human rights tribunal to dismiss a complaint that is without merit. However, if a complaint does have merit (in whole or in part), the tribunal may order the respondent to: cease the discriminatory policy or behaviour; refrain from engaging in the same or similar discriminatory acts in the future; award the complainant any opportunities or privileges that were lost as a result of the discrimination (e.g., a tribunal may order that a complainant be reinstated to their position or be given a promotion that was denied); compensate the complainant for any or all wages, income lost, or expenses incurred because of the discrimination; or take any other action the tribunal considers proper to place the complainant in the position they would have been in but for the discrimination. The tribunal may also order either party to pay the other for a portion of the costs associated with the proceeding. 218  Part II Legal Issues in Hiring and During the Course of Employment In BC, the remedies are very similar. Additionally, the BC Code specifically allows the panel to order an employer to adopt and implement an employment equity program and to make a declaratory order, which can consist of a public statement confirming an employer’s wrongdoing. Section 37(2)(d)(iii) enables the panel to order compensation to the com- plainant for “injury to dignity, feelings and self-respect.” Nothing in the Alberta legislation prohibits a tribunal from making similar orders. It is not uncommon for Alberta tribunals to award between $10,000 and $15,000 in damages for hurt feelings or injury to dignity and self-respect. However, in the 2024 decision Oliva, Pascoe, and Strong v Gursoy, the Alberta Tribunal awarded more than $230,000 in general damages to three separate complain- ants who were sexually harassed by their employer. The Tribunal noted that human rights awards have been increasing in Alberta since 2013, as have awards in other jurisdictions, where sexual harassment damages have reached the threshold of $50,000. The Tribunal also referenced Sunshine Village Corporation v Boehnisch (2020), where the Alberta Court of Queen’s Bench cautioned that general damages for discrimination in Alberta have been extremely modest and decisions should not be limited by these arbitrary benchmarks. In BC, awards for injury to dignity have usually been in the same range generally, and historically it had been understood that the de facto ceiling for injury to dignity awards was in the range of $25,000 to $35,000. In 2016, the BC Court of Appeal upheld an unpreced- ented award of $75,000 for injury to dignity in a case of discrimination on the basis of dis- ability (University of British Columbia v Kelly). Subsequently, in Araniva v RSY Contracting (No 3) (2019), the BC Tribunal awarded $40,000 for injury to dignity in a sexual harassment case (amounting to discrimination on the basis of sex). The BC Tribunal acknowledged that damages awards in previous comparable cases had been in the range of $22,500 to $25,000 but expressly endorsed an upward trend in damages awards. Indeed, in 2021 the BC Tribunal more than doubled the highest-ever payment to a complainant for injury to dignity, awarding $176,000 in general damages as part of an award in which the total dam- ages approached $1,000,000. Record-Setting “Injury to Dignity” Award by BC Human Rights CASE Tribunal IN POINT Francis v BC Ministry of Justice (No 5), 2021 BCHRT 16 Facts Levan Francis, 51, a former officer with BC Corrections, left his position at North Fraser Pretrial Centre in Port Coquitlam in 2013 after facing racial slurs and physical attacks from co-workers and manage- ment. He filed a complaint related to this harassment in 2012 and was engaged in the legal process for nearly a decade. Francis testified that as a result of the discrimination, he felt compelled to leave his job and lost interest in sports and socializing. He was diagnosed with major depressive disorder, generalized anxiety disorder, and obstructive sleep apnea. His hygiene suffered, and he began to abuse alcohol. In his doctor’s opinion, Francis “was seriously ill from a psychiatric point of view” and would likely never be capable of any future employment. Relevant Issue Having established that he had suffered unlawful discrimination in the workplace, what would be an appropriate damages award? Decision Francis sought an award of $220,000 in damages for injury to his dignity, feelings, and self-respect. The BC Tribunal concluded that the harassment and discrimination he endured “struck at the core of  Chapter 7 Human Rights Issues   219 Francis’ identity and feelings of self-worth and emotional well-being.” Francis was particularly vulner- able because of the nature of his job and his genuine fear that he could not count on his colleagues for help if something dangerous happened at work. Finally, the BC Tribunal pointed to the severe social, mental, and financial stresses the discrimination had caused Francis. Ultimately, the BC Tribunal concluded that $220,000 would be an appropriate starting point for a damages award in this case, but then applied a “discount” of 20 percent to account for the contingency that the harm he experienced may have occurred in any event due to other intervening events after he left the workplace, such as difficulties he encountered in accessing benefits. The full amount of the award for injury to dignity was $220,000 in recognition of the “extreme” injury Francis suffered, which was then reduced to $176,000 on the basis of a 20 percent contingency. Also notable was that, in addition to the substantial award for injury to dignity, Francis was awarded more than $750,000 as compensation for past and future wage loss and pension loss on the basis that, due to the discrimination and mistreatment he suffered in the workplace, he was entirely unable to work through to his retirement age. The Francis decision signals that the BC Tribunal is willing to make significant injury to dignity awards if the circumstances warrant them. The amount of the award in this decision could influence future awards, both at the high end of the award spectrum and the median amount awarded as there is no cap to injury to dignity awards in BC. Unless there is a human rights element to a civil action, a human rights claim may only be made through the administrative system of human rights commissions and tribunals or through grievance arbitration for unionized employees. There is no independent tort of dis- crimination under the common law (as held by the Supreme Court of Canada in the 1981 case Seneca College v Bhadauria); discrimination is a matter for human rights legislation. The BC Court of Appeal applied the Bhadauria ruling when it held that there is no violation of the Charter in the requirement that “[a]ll human rights complainants [must] bring their complaints under the Code and before the Tribunal” rather than being allowed to go directly to the courts with a discrimination claim (Gichuru v The Law Society of British Columbia at para 103). However, if an employee’s claim of discrimination or harassment is part of a civil law- suit, such as a claim for wrongful dismissal, the employee is usually not allowed to pursue a parallel human rights claim with a tribunal. In such cases, an employee has the option of either going to court and including the discrimination claim as part of the wrongful dis- missal lawsuit or filing an application under the human rights legislation of the appropriate jurisdiction. The employee can file in both legal avenues to ensure deadlines are met, but a decision by one adjudicative body will prevent the case from being heard by the other. Human Rights Issues in Recruitment, Selection, and Hiring It has been said that the selection process is probably responsible for more discrimination than any other area of employment practice. At the hiring stage, assumptions, often subcon- scious, about certain groups of people and their abilities can come into play. Recruiters are required to make decisions quickly based on information in a job application form and one or two interviews. Unspoken assumptions and first impressions lend themselves to subtle forms of discrimination. Indeed, tribunals sometimes find a “subtle scent of discrimination” 220  Part II Legal Issues in Hiring and During the Course of Employment that permeates certain workplaces and amounts to a violation of human rights (see, for ex- ample, the BC case of Morrison v AdvoCare and the federal case of Turner v Canada Border Services Agency , mentioned above). To protect themselves, employers should document all decisions made at each step of the hiring process and include the reasons for each decision. Clear and careful documenta- tion, prepared at the time a decision is made, provides an employer with a credible basis to defend against allegations that the decision was made on discriminatory grounds. The Alberta Act and the BC Code are infringed even if a discriminatory ground is only one of several reasons for an employment decision. The following is a discussion of the human rights issues raised at each step of the recruit- ment, selection, and hiring process. Essential Requirements of the Job An employer should ensure that a job description is current and accurately reflects the employer’s needs and expectations. Particular duties or structures that made sense when the job was last filled may have changed in the interim. The employer should review the job carefully to determine which requirements are es- sential for the job. Interpretation of BFORs would rely on an analysis of job duties. Only essential duties should be considered in deciding whether or not someone is capable of performing a job. Job duties or requirements that are both essential and relate to a prohibited ground of dis- crimination should be scrutinized carefully. For example, requiring a driver’s licence for a job that does not entail a lot of driving would unnecessarily bar a candidate who is unable to obtain a driver’s licence because of physical disability, and therefore could infringe the Alberta Act or BC Code. On the other hand, if the job involves a lot of communication with the public, it is reasonable to require fluency in English, but it is unacceptable to discriminate against some- one who speaks English with a non-Canadian accent. (Although language is not a prohibited ground of discrimination, it is directly linked to other grounds, such as place of origin.) Where an essential job requirement negatively affects a person or group on the basis of a prohibited ground of discrimination, an employer has a duty to accommodate the in- undue hardship dividual or group unless this causes undue hardship. The undue hardship standard was occurs if accommodation established in 1999, when the Supreme Court of Canada issued the watershed decision of creates “onerous condi- British Columbia (Public Service Employee Relations Commission) v BCGSEU (known as tions,”“intolerable financial the Meiorin case). Meiorin was a firefighter and long-serving employee who lost her job costs,” or “serious disrup- when her employer implemented a new physical fitness test as a bona fide occupational tion” to the business qualification. Although the Meiorin case occurred in the context of an ongoing employ- ment relationship, the approach established by the Court is important to employers during recruitment, testing, selection, and hiring. Three-Part Test Established for Justifying Discriminatory Rule CASE IN British Columbia (Public Service Employee Relations Commission) v BCGSEU, 1999 POINT CanLII 652 (SCC) Facts Meiorin was a forest firefighter who had performed her job in a satisfactory manner for three years when her employer, the BC government, implemented a new policy under which all firefighters  Chapter 7 Human Rights Issues   221 were required to pass a series of fitness tests. A team of researchers at the University of Victoria had designed the tests using a sample group of participants that consisted of many more men than women. To measure aerobic capacity, the test required employees to run 2.5 kilometres in 11 min- utes or less. Meiorin tried to pass this part of the test on 4 separate occasions, but her best time was 49 seconds over the 11-minute limit. As a result, the government terminated her employment as a forest firefighter. Relevant Issue Whether Meiorin’s termination amounted to discrimination and thus violated British Columbia’s human rights legislation. Decision The Supreme Court of Canada found that the rule was discriminatory because Meiorin was able to show that the aerobic requirement screened out more women than men on the basis of their dif- fering physical capacities. The issue was whether the discriminatory rule or standard could be justi- fied. Reversing previous case law, the Court ruled that there should not be separate categories of discrimination: direct and constructive (adverse impact). Whatever form discrimination takes, job rules or qualifications that detrimentally affect people or groups on the basis of a prohibited ground of dis- crimination should be subject to the same analysis. The Court established a three-part test to deter- mine when a discriminatory rule or qualification is justifiable. To successfully defend a discriminatory standard or rule, the employer must: 1. demonstrate that a rational connection exists between the purpose for which the standard was introduced and the objective requirements of the job; 2. demonstrate that the standard was adopted in an honest and good-faith belief that it was necessary for the performance of the job; and 3. establish that the standard was reasonably necessary to accomplish that legitimate work-related purpose. To establish this, the employer must show that it was impossible to accommodate employ- ees who share the characteristics of the claimant without imposing undue hardship on itself. The employer met the first two tests but failed the third one. It was unable to prove that the aero- bic standard was reasonably necessary for a forest firefighter to perform the job safely and efficiently or that accommodation was impossible without undue hardship. The third part of the Meiorin test is a very high standard for an employer to meet and one that requires it to consider differing needs when setting or creating a standard or rule. However, this does not mean that an employer must show that it is impossible to accom- modate the individual or group at all. In its 2008 Hydro-Québec decision, the Supreme Court of Canada clarified the third part of the Meiorin test. It confirmed that the test is not whether it is impossible to accommodate at all, but whether it is impossible to do so without undue hardship. Furthermore, the question of reasonable accommodation should be taken into consider- ation from the beginning as part of setting the rule or standard. In Meiorin, the BC gov- ernment should have developed standards of aerobic fitness that recognized the different capacities of women and men and established requirements accordingly. The Court sug- gested some factors that might be determinative when assessing whether the duty to ac- commodate has been met: 1. Did the employer investigate alternative approaches that do not have a discrimina- tory effect, such as individual testing? 2. Were there valid reasons why alternative approaches were not implemented? What were they? 222  Part II Legal Issues in Hiring and During the Course of Employment 3. Can the workplace accommodate different standards that reflect group or individual differences and capabilities? 4. Can legitimate workplace objectives be met in a less discriminatory manner? 5. Does the standard ensure that the desired qualification is met without placing an undue burden on those to whom it applies? 6. Have other parties who are obliged to assist in the search for accommodation (e.g., the union representing an affected worker) fulfilled their roles? Use of Employment Agencies Sometimes employers use employment agencies to hire people temporarily. These workers are often referred to as “temps.” In some situations, the agency remains the employer. In BC, employment agencies are specifically identified in section 13(2) as having an obli- gation not to refuse to refer a person for employment on any of the 15 grounds of discrimin- ation listed in section 13(1). An “employment agency” is defined in section 1 of BC Code as including “a person who undertakes, with or without compensation, to procure employees for employers or to procure employment for persons.” In Alberta, employment agencies are not addressed specifically. However, human re- sources managers need to be aware that employment agencies are subject to the conditions of human rights legislation in the same way that employers are. Employers cannot ask, and employment agencies cannot accept or act on requests, to hire people on the basis of preferences related to prohibited grounds of discrimination. For example, an employer cannot legally ask an employment agency to send only “young blondes” to fill a position. An employment agency that accepted this directive would also be in contravention of the Alberta Act. To ensure that it is not implicated in any discriminatory practices, an employer should include a term in its contract with the employment agency that requires the agency to comply with all human rights requirements. Similarly, the agency should make it clear that it will not accept or act on discriminatory directions. Advertising a Job Many jobs are filled through advertisements. It is the intention of both BC and Alberta human rights statutes that an employer consider many qualified candidates in the early part of the recruitment process so that suitable candidates are not eliminated inadvertently. This intention affects both where and how a position is advertised, as well as the contents of the advertisement. Where and How Is a Job Advertised? Jobs are often advertised informally, using internal postings or “word of mouth.” The human rights problem with such informality is that it tends to perpetuate the current composition of the workforce. For example, if most of the current employees come from a certain ethnic background, filling the position by internal posting or word of mouth may perpetuate the ethnic status quo. It is not illegal to advertise by word of mouth or in an ethnically based community paper, but this approach creates some risk. If there is a subsequent complaint about discrimination, an employer’s hiring practices may affect a tribunal’s view of the case. Broadly based adver- tising is best because it provides access to the largest pool of applicants. Senior or highly skilled positions may need to be advertised over a larger geographic area than other jobs.  Chapter 7 Human Rights Issues   223 Contents of Advertisements Section 8(1) of the Alberta Act is very clear about what may be included in a job ad as well as the interview process. It provides as follows: 8(1) No person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant (a) that expresses either directly or indirectly any limitation, specification or preference indi- cating discrimination on the basis of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person. However, where the limitation, specification, or preference in the job posting is based on a BFOR, this section of the Alberta Act does not apply. For example, a university hiring a person to incorporate Indigenous knowledge and practices into their programs could rea- sonably require that the person be of Indigenous heritage. Section 11 of the BC Code is less detailed. It just prohibits advertisements from “express[ing] a limitation, specification or preference as to” any of the grounds listed in sec- tion 13 (except for prior offences), unless there is a BFOR. The BFOR exemption applies in BC, just as it does in Alberta. Sometimes an essential job duty unavoidably touches on a prohibited ground. For example, a school bus driver needs a special driver’s licence. This requirement may be stated in the adver- tisement even though it bars applicants who are unable to obtain such a licence because of a disability. But employers must make sure they state the essential job requirements rather than refer to personal characteristics. For example, where strenuous physical work is necessary, the advertisement should state that “heavy lifting is required” rather than that “the applicant must be physically fit.” Employers should also avoid qualifications that, while not obviously biased, may touch on a prohibited ground. For example, if the advertisement states that Canadian experience is preferred, a qualified candidate whose work experience is largely outside Canada might be deterred from applying. This is related to the prohibited ground of place of origin. Previous work experience may be canvassed at the application and interview stage to the extent that it is relevant. Advertisements can indicate that an employer is an equal opportunity employer or that candidates from diverse backgrounds are encouraged to apply. They should also use non- discriminatory language when describing a job. For example, gender-neutral words, such as “sales clerk” (rather than “salesman”) or “server” (rather than “waitress”), should be used. Reference to preferred applicants as “mature” and descriptions of an employer as having a “youthful” culture tend to exclude candidates on the prohibited ground of age. Job Applications Section 8(1)(b) of the Alberta Act prohibits employers from requiring job applicants to fur- nish any information regarding protected grounds. The Alberta Act thus expressly prohibits questions on an application form that directly or indirectly classify candidates by prohibited grounds. The intent is to avoid discouraging potential applicants from applying by creating the impression that they would not be acceptable. Appropriate questions are limited to establishing the applicant’s name, address, educa- tion, and previous employment history. The purpose of the job application form is to gather information on job qualifications and skills and to avoid eliciting information that directly or indirectly excludes individuals on non-job-related grounds. Table 7.1 provides examples of requests and questions that are recommended or should be avoided because they directly or indirectly touch on prohibited grounds. This list is not exhaustive. 224  Part II Legal Issues in Hiring and During the Course of Employment TABLE 7.1 Recommended Guide for Pre-employment Inquiries Unless there is a valid, job-related reason that constitutes a BFOR, employers should follow the guidelines below. Common Question Areas Recommended Not Recommended Gender, marital status, Availability for shift work, travel, etc. Plans for marriage, family, child care; any inquiries family status specific to gender or marital status (including common law relationships) or family status Race, colour, ancestry, or Legally permitted to work in Canada? Place of birth, citizenship, racial origin, next of kin place of origin Name Previous names, only if the information Maiden name; “Christian” name; reference to is needed to verify the applicant’s past origin of name; being related to another person employment or education and to do a by blood, marriage, or adoption reference check Languages Ability to communicate in any language Other languages when not required in a specific specifically required for a job job Photographs In rare situations, such as modelling and Requesting photographs (these can reveal race, entertainment gender, etc.) Clubs or organizations Membership in professional associations, Specific inquiries about club and organization clubs, or organizations; hobbies or memb