While most B.C. employers are aware that they have a legal duty to provide a discrimination-free work environment for their employees, many employers may not have a full appreciation of what that means in practice.

Navigating competing rights and obligations can be complicated. Even the best intentioned employer can find itself defending a human rights complaint, because intention is not required for a finding of discrimination.

Understanding the protected grounds, recognizing what amounts to discrimination and knowing what to look for when accommodating employees can help employers not only meet their legal obligations to provide a discrimination-free workplace, but also avoid costly litigation.

What is a Protected Ground?

Understanding the protected grounds is the first step for employers when navigating human rights issues. Protected grounds are characteristics of people that are protected from discrimination. Some protected grounds, such as race or religion, may be familiar, but others are less known.

Employers may not know, for instance, that political belief is a protected ground, that pregnancy is included in the protected ground of “sex”, or that the B.C. government recently passed Bill 27 to include gender identity and expression as a protected ground.

Other protected grounds, such as mental disability, which includes drug and alcohol dependency, are extremely common, but much more difficult for employers to identify.

What is Discrimination?

Discrimination is often described as “differential treatment,” arising either partly or entirely on the basis of a protected ground.

For example, discrimination could be found where an employer refuses to employ someone because of a criminal record if the criminal record is unrelated to their employment, or when disciplining an employee for absenteeism that is caused by a mental or physical disability.

Employers can justify conduct that would otherwise be discriminatory if it is considered a bone fide occupational requirement (BFOR). A BFOR must be adopted in good faith and be rationally connected to and reasonably necessary for accomplishing a legitimate workplace purpose.

To be considered a BFOR, employers must also demonstrate that they cannot accommodate the employee short of undue hardship. This means that when accommodating, employers are expected to endure some hardship, but the threshold of what constitutes undue hardship is different for every workplace.

What is Accommodation?

One of the purposes of laws prohibiting discrimination is to remove impediments from peoples’ full participation in economic life, including employment. Where there is a barrier to full employment (i.e. a rule, standard or policy that adversely effects employees on the basis of a protected ground), employers who can accommodate that employee short of undue hardship will be expected to do so.

Accommodations often involve adaptations to the workplace or adjustments to workplace policies, rules or duties. When employers are faced with accommodation requests, or should be aware that an employee needs accommodations, they need to make inquiries.
It is important to remember that employees are not entitled to a “perfect” accommodation, and have duties and obligations in the accommodation process, as well.

Tips for Employers

Employees who believe that they have been discriminated against in employment can make a complaint to the B.C. Human Rights Tribunal. Employers can ameliorate that liability by seeking legal advice early, and keeping the following in mind.

During the hiring process:

• Review your job applications and advertisements. Avoid asking questions about any of the protected grounds (e.g. age).
• During interviews, ask questions about the candidate’s skills and abilities. Avoid asking questions about protected grounds in the interview, unless it relates to a BFOR.

During the employment relationship:

• Communicate with your employees. What you believe are performance issues could in fact be a disability.
• When making employment decisions, such as compensation and benefits, ensure that they do not impact employees with protected grounds adversely.
• When accommodating, seek sufficient information to make an informed decision.
• Involve the employee during the accommodation process. Remember that accommodations need not be perfect, but they may need fine tuning.

At the end of the employment relationship:

Prior to disciplining or terminating an employee, ensure that the reasons for the termination are unrelated to a protected ground. An employer can be found to have discriminated if even part of the reason is based on a protected ground, unless the employer can establish a BFOR.

Final thoughts

As this is a complicated and evolving area of law, involving competing rights and responsibilities, employers should consider seeking an advice from a workplace law expert.

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