Whether in a mediation or arbitration hearing, or during workplace investigation, the law regarding discrimination stipulates that an employer’s intention is irrelevant when discrimination has occurred. That means, even if an employer unintentionally discriminates against an employee, the consequences will be the same as if the employer meant to be discriminatory.
This stipulation can seem daunting, and regardless of whether or not a complaint is found to have merit, dealing with a discrimination issue can be arduous for the parties involved.
Fortunately, knowledge both of changes in the law, and the framework applied when issues are arbitrated, mediated, or investigated, can help parties deal effectively with discrimination issues.
Recent Legal Developments
In 2016, transgender and gender diverse/non-binary people received legislative protection from discrimination when the phrase “gender identity or expression” was added to the prohibited grounds for discrimination found in British Columbia’s Human Rights Code, RSBC 1996, c 210. The same protection was provided at the federal level in 2017 with an identical addition to the Canadian Human Rights Act, RSC 1985, c H-6. The current listed protected grounds are:
– national or ethnic origin [federal] / ancestry, place of origin [provincial];
– sex (including pregnancy or child-birth);
– sexual orientation;
– marital status;
– family status;
– genetic characteristics [federal] ;
– disability [federal] / physical or mental disability [provincial]
– conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered [federal]; and
– gender identity or expression (since 2016[federal] / 2017 [provincial]).
This addition of not only gender – but specifically the way a person expresses themselves – means that a person cannot be refused employment, terminated, or subject to an adverse effect because of their gender identity. These standards hold true for all of the above prohibited grounds.
Also recently, in British Columbia Human Rights Tribunal v. Schrenk,  2 SCR 795, 2017 SCC 62 (CanLII), the Supreme Court of Canada held that employer obligations extend not only to co-workers, but to any person integral to an employees’ workplace context. As such, employers will want to be precautious that an employee’s co-workers do not act in a way that is discriminatory (regardless of whether those co-workers are also co-employees or work for other employers at the same workplace) and must take appropriate action if discriminatory behaviour occurs.
The Framework applied in a Workplace Investigation, Arbitration, or Mediation
A. Onus on the Complainant
As discussed by the Supreme Court of Canada in Moore v. British Columbia (Education),  3 SCR 360, 2012 SCC 61 (CanLII), the first aspect in dealing with a discrimination complaint is that the complainant must prove that they have a characteristic(s) protected from discrimination (from the list of prohibited grounds) and that they were not hired/ceased to be employed/suffered an adverse impact because of that characteristic(s). While sometimes it is clear, such as a visible characteristic that can be easily noticed, often times there are subtle characteristics present that can only be recognized through careful consideration.
B. Onus on the Respondent
If it appears that a discriminatory employment standard has been imposed, the Supreme Court of Canada (in British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 SCR 3, 1999 CanLII 652 (SCC)) has set out a test to determine whether that standard is defensible by virtue of being an “actual occupational requirement” (commonly referred to as a “bona fide occupational requirement of qualification” or BFOR/Q). The employer must prove that:
- the purpose of the standard is rationally related to the performance of the job;
- the standard was adopted because the employer truly believed it was necessary to fulfill a legitimate work-related purpose; and
- the standard is reasonably necessary to fulfill that work-related purpose.
This third component of the test involves the employer’s duty to accommodate, where an employer must show whether or not they have discharged that duty (i.e. the employer must demonstrate the steps they took to accommodate the employee). To be seen as reasonably accommodating, the employer’s efforts do not have to result in full accommodation for the employee, but must rise to a level short of a point of ‘undue hardship’. This is a high standard for employers to meet.
Overall, then, employers are to foster not only a discrimination-free work environment, but hiring/retention/firing practices, and workplace standards and policies. If a complaint is made, the complainant must show they have been discriminated against on one of the prohibited grounds, while the respondent must show their efforts to accommodate as well as the relationship and necessity of the standard that may have a discriminatory affect to the work-related purpose.
The addition of “gender identity and expression” to the protected grounds under both British Columbia and federal legislation highlights an area in need of further consideration and has already led to a new landscape in the modern employer-employee relationship.
Conclusion: Getting Assistance Navigating Discrimination Issues
Discrimination claims can be dealt with in a variety of forums. Parties might choose or be compelled to arbitrate or mediate an existing issue, or an independent workplace investigation might take place. In any forum, the legal framework surrounding discrimination can seem daunting and application of a given set of facts and evidence requires the type of in-depth legal knowledge and experience offered by Neil Hain. Please contact us for help navigating a discrimination issue at your workplace.