The Human Rights Code of British Columbia is likely the last thing on an employer’s mind, but a Human Rights complaint by demoted, laid off, transferred, dismissed and demoralized employees can be messy, and expensive and the Human Rights Tribunal is not where you want to be spending your time if if you are struggling to save and rebuild your business.
The Human Rights Code of British Columbia (and for federally regulated employers, the Canadian Human Rights Act) is quasi-constitutional legislation designed to eliminate discrimination. The HRC prohibits an employer from discriminating against an employee on the basis of race, religion, marital or family status, disability, sex, sexual orientation, age or criminal or summary conviction unrelated to employment (which includes charges).
It is a relatively simple exercise for an employee to file a Human Rights complaint with the Tribunal and in most cases, to obtain free representation from a government funded organization called the Human Rights Coalition.
Once a Human Rights complaint is accepted the process will move forward to a hearing before a “member” (like a judge) who has the authority to order remedies such as reinstatement with or without back pay, wage loss, reimbursement of expenses, injury to dignity damages and/or force an employer to put in place policies or programs. The injury to dignity damages alone can be as high as $35,000.
There are mediation opportunities along the way, but mediation takes two and if the employee is not interested in settling, employers will, in most cases, find themselves facing a hearing. To find discrimination, the member only needs to find that a characteristic that designates them as someone who might be discriminated against was a “factor” in the employer’s decision making, so the Human Rights Tribunal can be a very scary place for an employer.
Being a employee with a protected characteristic, such as being the eldest employee, the only gay employee, the only non-white employee or a disabled employee should not give that employee a higher level of job security than the employee who does not have any of the characteristics protected by Human Rights legislation (eg. a caucasian male working with mostly caucasian males). But if these employees are chosen for layoff, demotion, transfer or dismissal, the employer should carefully consider (a) why this employee is being selected; (b) whether the employee’s age, disability etc. is at all influencing the decision; and (c ) what information the employer has available to counter any perception that the person’s protected characteristics did factor into the decision to choose this particular employee.
One of the positive outcomes of a restructuring is that a company can use this as an opportunity to keep high performers, but if the low performer is, for example, the oldest worker with the longest service, the employer needs good records, such as performance reviews, meeting notes, coaching letters, disciplinary letters showing they have been open with the employee that lay off or dismissal is a likely outcome of poor performance.
The employee who is in denial may decide that their age was the real reason for the layoff (or at least part of the reason). Even with good records, selecting the employee who is markedly different from the others is risky, but performance management ideally combined with a severance offer and a signed release will provide the employer with the best protection against a Human Rights complaint.
Employers can also protect themselves from Human Rights complaints by: having a lay off policy (or more broadly a restructure policy) setting out the criteria the employer will consider in setting out which employees will be affected by the restructure. For example, the employer may say that in determining the order of lay offs, seniority and documented job performance will be the primary considerations. Preferably such a policy will be in place long before the employer actually restructures.
Veronica Ukrainetz is the principal of Ukrainetz Law Corporation in Vernon, B.C.
This article is meant for reference only and should not be construed as legal advice. Originally published in the Business Examiner.
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