9 The B.C. Human Rights Code

Discrimination

Canada has signed international agreements that protect human rights. Within Canada, human rights are enshrined in the Canadian Charter of Rights and Freedoms. Section 15 of the Charter states that “every individual is equal before and under the laws and has the right to equal protection and equal benefit of the law without discrimination….” The Charter is supplemented by other legislation at the federal level, such as the Canadian Labour Code.

A few food services may be regulated federally (e.g., catering for railway work crews, cafeterias on military bases, or food services within federal penitentiaries). The provisions of the federal legislation are similar to provincial codes. Complaints related to federally registered organizations are handled by the Canadian Human Rights Commission.

In British Columbia, the Human Rights Code prohibits discrimination:

• In published notices, signs, symbols, and emblems
• In access to public services or facilities
• In purchase of property
• In lease or rental of premises
• In employment advertisements
• In wages
• In employment
• By unions or associations

The legislation also establishes the British Columbia Human Rights Tribunal, which receives and handles complaints. The Tribunal has the authority to mediate agreements between the parties without going through a formal complaint process, investigate complaints, hold a hearing, and make a decision.

Types of discrimination covered

Discrimination based on race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age, and criminal or summary conviction unrelated to employment is prohibited.

For example, you cannot refuse to hire a person who is qualified for the job because he or she comes from a particular ethnic group. Nor can you give preferential treatment to someone because she or he belongs to the same religion as you do.

Exemptions

Non-profit groups formed to promote the interests and welfare of an identifiable group or class of persons may be exempted from the provisions of the B.C. Human Rights Code. These groups may grant a preference to members of the identifiable group or class of persons. For example, an immigrant services society promoting the interests of Vietnamese immigrants to Canada could give preference to a member of that group when hiring staff.

In addition, the B.C. Human Rights Council may approve any program or activity that improves the conditions of disadvantaged individuals or groups. Affirmative action or employment equity programs are examples of special programs that improve the employment of disadvantaged individuals or groups. These approved programs and activities will not be considered in contravention of the Code (that is, a violation of the law).

Some examples of exemptions might include:

• An Aboriginal housing society giving preference to First Nations applicants
• An employment equity program developed by a restaurant chain and approved by the B.C. Human Rights Tribunal that improves the employment rates of persons with mental disabilities

Implications for food service establishments

Food service establishments are affected by the legislation in two ways. First, employers must ensure that the terms and conditions of employment are not discriminatory. The terms and conditions of employment include policies and procedures for recruitment and selection, dismissals, layoffs, promotions, and transfers.

Second, food service establishments that are open to the public may not deny service to an individual or a group of persons without a genuine and reasonable justification. For example, an openly affectionate gay or lesbian couple may not be denied service because other guests are offended. An individual who is abusive to other patrons or to the staff, however, may be ejected from the premises because there is a genuine and reasonable concern that the safety and well-being of others is endangered.

A reasonable effort must be made to ensure that premises are accessible to persons with disabilities. In addition to the goodwill generated, improved accessibility will make it easier for all patrons to dine at your restaurant. If the business can show that it would cause undue hardship to renovate a building to make it accessible to wheelchairs, it may be exempted from this requirement.

Employers’ Rights

The B.C. Human Rights Code supports the principle that the best person should get the job. Employers have the right to hire, dismiss, promote, and establish conditions of employment that best serve their company’s goals. They have the right to:

• Identify specific employment needs and priorities
• Choose the most qualified person for a position
• Set standards for work
• Evaluate workers based on defined job descriptions and performance criteria
• Discipline, demote, or fire incompetent, negligent, or insubordinate employees
• Set employment terms and conditions
• Establish salary and wage scales

Should an employee or customer make a complaint to the B.C. Human Rights Tribunal, employers also have the right to a full and impartial investigation of the complaint.

Employees’ Rights

The Human Rights Code protects employees by ensuring that decisions affecting their employment are made based on valid job-related criteria. They have the right to:

• Be considered for any job for which they are qualified
• Be given a clear statement of the skills, experience, and education required for a job
• Be informed of all job duties and performance expectations
• Be given feedback regarding their shortcomings and an opportunity to improve job performance
• Work in an environment free from discrimination and harassment from supervisors, co-workers. or customers
• File a complaint without fear of reprisal

Complaint procedure

If you feel you have been discriminated against or harassed, you can take several forms of action. If you have been harassed, make it clear to the harasser that his or her actions are unwelcome. You may do this directly or in writing. Advise your employer, if possible. If you confront the harasser in person, take someone with you as a witness and for support.

If the harassment does not stop, or if you feel too threatened to confront the individual:

• Keep a record
• Talk to your fellow employees
• Get more information
• Lay a complaint within your company
• File a complaint with the appropriate Human Rights Tribunal or Commission

More information on bullying and harassment is found below.

Fair Recruitment Practices

Fair recruitment practices attract the widest selection of applicants to the position. If the recruitment practices are unfair or discriminatory, qualified candidates may be discouraged from applying for the job. By relying only on job-related considerations when recruiting and selecting staff, you have the best chance of finding the best person for the job.

Job analysis

Job analysis is a business procedure that companies use to present a clear picture of the nature of a job and the skills and qualifications required. An effective job analysis allows you to determine the skill, effort, and responsibility required of each job. This in turn assists you in recruiting the best person for the job and paying that individual a fair wage.

A job analysis should include:

• A list of all of the job duties and responsibilities an individual is expected to perform
• How frequently each task is performed
• A description of the working conditions and physical environment
• Skills, knowledge, and experience needed to perform the job competently

Bona fide occupational requirements

The process of recruiting staff begins with establishing the job duties and qualifications. When you identify the responsibilities of the job and the qualifications required of the successful candidate, you must ensure that these are bona fide (genuine) occupational requirements, which means those requirements that persons should have to enable them to perform a job adequately and safely.

For example, cooks must often work early mornings, weekends, or evenings in order to cover the opening hours of the food services establishment. The minimum qualifications might also include completion of the FOODSAFE course, a professional cook training program, or a Cook Red Seal. These qualifications are acceptable because they do not discriminate against an individual or group of people.

On the other hand, if you excluded an individual because he or she was a member of a particular religious group and you believed that the person would be unwilling to work on Saturday, a day your restaurant is normally open, your actions could be considered discriminatory. Similarly, if you refused to hire a parent of an infant because you believed that the individual would miss work due to lack of child care, this too could be considered discrimination. Such actions could leave you and your employer open to a complaint to the Human Rights Tribunal.

If a requirement might be discriminatory, there should be objective proof (that is, statistics or medical evidence) that the requirement is necessary. Any requirement must be imposed in good faith. In good faith means that the requirement is imposed only to meet the demands of the job, not to exclude persons from applying. Sometimes a job may have a requirement or qualification that prevents individuals or groups from participating. When the requirement or qualification meets certain strict guidelines, it is permitted by human rights law. If you believe that you have a bona fide occupational requirement that may be discriminatory, you should contact the Human Rights Tribunal for information on how best to proceed.

Guidelines for Employers: Applications and Interviews

When gathering information about an individual’s ability to perform the job, you should take note of the following guidelines. These guidelines suggest questions that will collect the type of information you require to make informed selection decisions. They also identify the types of questions you should avoid. Asking certain questions could lead to a complaint of discrimination if persons protected by the legislation are denied employment opportunities.

You should note that certain questions that would be considered discriminatory before hiring may be permitted after hiring for the purposes of benefit and insurance plan entitlements.

Age

Before hiring, you may ask whether the individual has reached legal working age. In B.C., the legal working age is 15 years. After hiring, an applicant’s age may be asked for benefit and insurance plans. Avoid asking about age in general, or requesting a copy of the person’s birth certificate.

Race, colour, ancestry, place of origin

You may ask “Are you legally entitled to work in Canada?” Anyone who is legally entitled to work must be given equal employment opportunity unless there is a legal restriction stating otherwise. Canadian citizens, permanent residents, and individuals who have received a work permit from the federal government are entitled to work. You should avoid asking questions about a person’s birthplace or nationality or that of his or her relatives or spouse. Once a person is hired, you may request the social insurance number for income tax, Employment Insurance, and benefit purposes.

Criminal or summary conviction

Inquiries about criminal or summary convictions are discouraged unless the question is directly related to the job duties of the position. If bonding is required, you may ask whether the person is eligible to be bonded.

Bonding means taking out an insurance policy to pay for any losses caused by an employee. In order to be bonded, an individual must have a reasonable record of financial stability and be able to provide at least three character references. A very high debt load on credit cards or an impending bankruptcy could jeopardize your application.

In some types of positions, particularly those where an individual may be working with children, the elderly, or individuals with disabilities, a criminal record check may be required. Permission must be received from the individual in order to conduct this check. However, if the responsibilities of the position require this, an applicant may be refused hiring if he or she does not consent to the check being made.

Education

Educational requirements should be directly related to the duties of the job.

Physical or mental disability

You may ask the applicant job-related questions concerning his or her ability to perform the essential components of the job. A disability is relevant to the job only if it prevents the person from effectively carrying out the essential job components. For example, you might ask applicants whether they are able to work standing for an entire shift if this is necessary. Do not ask the applicant for a general statement of disability, limitations, or health problems.

Political beliefs

Avoid asking for statements of political beliefs or philosophy.

Religious beliefs

You may ask job-related questions such as whether the individual is available to work for the required work time. For example, if your restaurant is open on Saturdays and Sundays, you may ask the applicant if he or she is able to work on those days. Employers must be reasonable in accommodating the religious needs of employees. Do not ask for statements concerning religious affiliations, religious belief, or church membership.

Sex, sexual orientation, marital/family status

If job mobility or travel is required for the job, you may ask whether the individual is willing to work under those conditions. For example, if you are hiring cooks for a job in a remote mining camp, where cooks typically work for three weeks in the camp and then are returned to their homes for time off, you could explain the arrangements and ask whether the applicant is willing to work in these conditions.

You should avoid questions about

• The applicant’s sex or sexual orientation
• Pregnancy and child-bearing plans
• Child care arrangements
• Marital status (single, married, divorced, engaged, separated, widowed, or living common law)

Once you have hired an individual, you may request the information about the person’s spouse, children, and dependants required for benefit and pension plans.

Handling Discriminatory Questions in Interviews

If an employer asks questions that are not directly related to bona fide occupational requirements and that relate to the prohibited grounds under the Human Rights Code, he or she may be open to complaints of discrimination by unsuccessful candidates. It should be noted that some questions that might be considered discriminatory before hiring may be asked afterward if there is a legitimate need for the information. For example, an employer may request information about marital status and dependants in order to enroll a person in employee benefit programs.

If you are asked questions that you believe are discriminatory during an interview, you may refuse to answer. Do not automatically assume that the question is threatening.

Consider the following when responding:

• Try to figure out why the question is being asked. Is the individual just being friendly or making conversation? Or has the employer made some assumption about you and your fitness for the job?
• If you are fairly certain you know why the question is being asked, you could say something like “If you are asking whether I can work on evenings and weekends, the answer is yes. In my past two jobs, I routinely worked till 10 at night and on weekends.”
• If you are uncertain why the question was asked, you could paraphrase the question in an attempt to clarify it. For example, you could say, “Are you asking whether I am willing to relocate?” You could also take a direct approach: “Could you explain why you are asking this question?”
• Keep calm and be assertive in your responses. Losing your temper could cost you a job if the employer was merely trying to make conversation.

Wage Discrimination

Sections of the Act prevent discrimination in the wages paid to employees. Employers who are found to have discriminatory wages may be required to pay employees the difference between the amount the employee was paid and the amount to which he or she was rightly entitled over a 12-month period.

Employers have the responsibility to ensure that sex, race, and other prohibited grounds of discrimination are not a factor in determining wage scales. The best tool in determining wages is the job analysis. This will allow you to assess what skill, experience, effort, and responsibility is required for each job.

Methods of Creating a Discrimination-Free Workplace

Everyone has the right to work in an environment that is free of discrimination and conducive to job performance. Workplaces in which workers are subject to harassment are unhappy places in which individuals do not perform to the best of their abilities.

Harassment creates a “poisoned” atmosphere that does not contribute to cooperation and productivity. The people targeted for harassment may become ill and over stressed. They may leave the department or workplace in order to escape the harassment. Co-workers may have reduced morale as a result of the lack of respect for others they witness. Ultimately, the effects of a less productive and cooperative workplace are felt by the customers and guests of the establishment. In addition, any mental illness that occurs as a result of workplace bullying or harassment may be considered a workplace injury and therefore subject to a WorkSafeBC claim.

Bullying and harassment

Any physical or verbal conduct by a co-worker, supervisor, or guest that is discriminatory in nature and that offends or humiliates you is bullying and harassment. Although people often think only of sexual harassment, bullying and harassment include any differential treatment of people on the basis of their gender, race, ethnic background, class, religion, sexual orientation, age, or disability.

Bullying and harassment is a type of discrimination. It can take many forms, including:

• Threats, intimidation, or verbal abuse
• Unwelcome remarks or jokes about subjects like your race, religion, disability, or age
• Displaying sexist, racist, or other offensive pictures and posters
• Disparaging names or comments
• Badgering and constant teasing
• Offensive remarks
• Unwanted touching
• Making someone the constant target of practical jokes
• Sexually suggestive remarks or gestures
• Stereotyping on the basis of the group to which a person belongs
• Unfair sharing of responsibilities
• Physical assault, including sexual assault

Bullying and harassment can consist of a single incident or several incidents over a period of time. It is considered to have taken place if a reasonable person ought to have known that the behaviour was unwelcome.

Inappropriate jokes are sometimes perceived as just having fun. However, even if the person about whom you are joking laughs, it does not mean that he or she enjoys the experience. Jokes of this type can be intimidating and make people ill at ease. They may make people less willing to talk to you because they expect that you will turn their communication with you into more intimidating jokes. Racist and sexist jokes exclude people from your group. They show a lack of respect. They are also harassment.

Constant use of racist or sexist expressions is also harassment. Comments like “he’s a male chauvinist pig” and “women should be kept at home” are unacceptable and may be considered harassment.

Sexual harassment

Sexual harassment is harassment involving unwelcome conduct of a sexual nature. It can include a promise for reward in exchange for sexual favours. Or it might involve threats, either stated or unstated, that unfavourable consequences will result from not going along with the harassment. These consequences might include being demoted, losing a bonus, not getting the shifts you want, or being denied a promotion. Sexual harassment can also occur without promise of reward or threats. The harassment might make the workplace an intimidating, hostile, or offensive place where an employee cannot work comfortably.

You do not need to intend to harass a person for harassment to take place. Saying “it was just a joke” or “I just meant it as a compliment” are not excuses under the law.

Employers’ obligations

Employers are responsible for any harassment by supervisors, co-workers, or customers that occurs in the workplace. It is the employer’s responsibility to:

• Make it clear that harassment will not be tolerated
• Establish a harassment policy
• Make sure that every employee understands the policy and the procedures for dealing with harassment
• Inform supervisors and managers of their responsibility to provide a harassment-free work environment
• Investigate and correct harassment problems as soon as they come to light, even if a formal complaint has not been received

In a food service establishment, supervisors, managers, and owners also have a responsibility to intervene if a guest harasses workers. For example, if a guest attempts to pinch or fondle a food server, and the manager is aware of the situation as a result of a complaint or observing the customer’s behaviour, it is his or her responsibility to take action. Ignoring the behaviour or asking the server to ignore the behaviour is not acceptable and could leave the employer open to a complaint to the Human Rights Tribunal or to WorkSafeBC.

Company policies on harassment

A strong policy prohibiting harassment and decisive measures to deal with it are clearly in the corporate interest of the employer.

When a company has a strong policy on harassment and when it ensures that all employees know about the policy, employees get the message that the company means what it says. They also know exactly what to do if they are being harassed.

A typical harassment policy contains:

• A strong statement that the company will not tolerate harassment
• A definition of harassment
• Management responsibility
• Procedures for reporting harassment
• An explanation of the mediation and investigation procedures and the rights of all parties
• A discussion of the sanctions (discipline) that may be applied
• Time limits for complaints

Samples of policies on harassment which companies can use as models are available from the Human Rights Tribunal or from WorkSafeBC.

Checking your own behaviour

Discrimination and harassment in the workplace are serious They can cost you your reputation or even your job. To ensure that you treat your fellow employees fairly and equitably, you should:

• Monitor your own behaviour to check whether you are being fair or whether you are singling others out for different treatment
• Check for signs of nervousness or discomfort on the part of co-workers, especially subtle cues such as a nervous laugh, shifting eyes, or avoidance of contact
• Check out your observations in a non-threatening way (e.g., “I’ve noticed that you seem nervous around me. Am I doing something that you find uncomfortable?” said in a pleasant, non-confrontational way)
• Ask for honest feedback from your co-workers about your behaviour
• Be sensitive to the impact your authority or the environment can have on the impact of your words and actions (e.g., many women feel uncomfortable being alone with a man they do not know well)
• Never assume that you know what others think, feel, or how they will react

Physical or mental disability

People with physical or mental disabilities are protected under the Human Rights Code. This protection covers those individuals whose prospects of getting a job and advancing in that job are reduced or affected because of a disability. When hiring, you should evaluate all applicants on the basis of their ability to carry out the essential components of the job. You should:

• Concentrate on the person’s capabilities, not disabilities
• Assess persons as individuals, not as members of a group
• Avoid making generalizations about disabilities
• Consider reasonable modifications that people with disabilities need to perform the essential job tasks

Job Accommodations

Modifications to the job or facility to employ persons with disabilities are called job accommodations. For example, persons who are hearing impaired may require just a simple light system to alert them to new orders. Often, the person with a disability can tell you exactly what simple job accommodations are needed. Some government funding may be available for more extensive accommodations.

There is also a toolkit available from go2HR (Figure 7) to assist food service employers in assigning modified duties for injured or disabled workers: https://www.go2HR.ca/resource/go2HR-downloads/full-service-employers-guide-and-toolkit-workplace-injury-management-bc.

If an employee is already employed when he or she becomes temporarily or permanently disabled, the employer cannot fire, lay off, or demote the person because of the disability unless the individual can no longer perform the essential components of the job. The employer is required to reasonably accommodate the disability. This responsibility is sometimes called the duty to accommodate

Accommodations may include:

• Reassigning non-essential work duties
• Flexible work schedules
• Physical alteration of facilities
• Training
• Technical aids

The B.C. Human Rights Tribunal would look at such factors as how much the accommodation will cost, the size of the workforce, the impact of a collective agreement, and safety considerations.

In addition to the legal requirements of the Human Rights Code, accommodating employees who have been disabled makes sound business sense. If you have to replace an experienced cook, you will have to recruit, select, and orient a new employee. In the meantime, you may be paying overtime to other cooks in order to cover the shift. By the time that the new cook is thoroughly familiar with your kitchen, your investment may be thousands of dollars. In contrast, making job accommodations may cost relatively little and may inspire greater loyalty from all of your employees.

Requirements for public services and facilities

Persons with disabilities have the right to access facilities and to receive services from restaurants, public washrooms, stores, and other places of business. This means that you cannot deny service to a person with a disability. For example, people with physical disabilities that make it difficult for them to feed themselves cannot be denied restaurant service. You should also be careful about jumping to conclusions about the condition of your guests. For example, people with slurred speech or an unstable gait may not be drunk. They may have a disability that affects speech or balance. If you ask the person to leave thinking that he or she is drunk, you could be the subject of a complaint.

It is sound business practice, and may also be a requirement of your municipality and business licence, to ensure that your restaurant or food service establishment is accessible for persons with disabilities. When choosing a restaurant location or redesigning a facility, consider the following:

• Avoid stairs and unnecessary multi-level seating areas or provide ramps or elevators between areas.
• Space tables and seating far enough apart to allow persons with limited mobility or wheelchairs to pass.
• If the seating is largely fixed (e.g., banquettes), provide some tables with chairs that can be easily removed to accommodate wheelchairs.
• Provide accessible washrooms with lever-style door handles and faucets.
• Check the level of sinks, light switches, pay telephones, towel dispensers, elevator controls. and other items to ensure that they can be reached by a person in a wheelchair.

Advice on how to make your facility accessible and barrier-free is available from municipal engineering departments. If your restaurant is undergoing construction or renovations, you may also have to meet accessibility provisions of the British Columbia Building Code. The municipal engineering department can provide information about these requirements.