Everyone has the right to be free from discrimination based on protected characteristics regarding membership in a trade union, employers’ organization or occupational association.
This means that unions and associations have a duty not to discriminate regarding membership. This includes a duty to take all reasonable steps to avoid a negative effect based on a personal characteristic. This is called the “duty to accommodate”.
Unions and associations are also prohibited from discriminating in other areas of the Code.
This means that a complaint must include information showing:
To make a complaint of discrimination, the complainant must have a personal characteristic protected under the Human Rights Code or be seen to have one.
For example, the complainant has a disability or the respondent thinks that the complainant has a disability.
The characteristics protected in membership in a union or association are:
The conduct must have a negative effect on the complainant’s membership in the union or association.
For example: Membership is denied or the member is suspended or expelled.
Harassment based on a personal characteristic that negatively affects a person’s membership is prohibited.
A negative effect can arise where a person is treated the same as others, but this has a negative effect on them.
For example: A person with a disability is unable to meet an expectation of membership due to a disability
A union or association has a duty to accommodate the member to avoid a negative effect based on a personal characteristic.
For there to be discrimination in this kind of situation, the respondent must reasonably be aware that the complainant needs accommodation.
For example: The complainant told the respondent they need accommodation or it is clear that the complainant needs accommodation
Poor treatment is discrimination only if it is connected to a personal characteristic. This means that a personal characteristic must be at least a factor in the negative effect. It does not need to be the only factor or the most important factor. A complainant does not need to show that the respondent meant to discriminate or was motivated by discrimination.
A person may believe that a personal characteristic was a factor, but a complaint must set out facts supporting the belief. Examples:
For example: A member of an association’s executive uses insults based on a personal characteristic, or gives the characteristic as a reason for the poor treatment
For example: The complainant is expelled due to a rule that applies because of their disability.
Note: this is enough to file a complaint. However, if the respondent justifies its action by showing that it acted in good faith and took all reasonable and practical steps to avoid the negative effect, then there is no discrimination.
For example: The complainant is disciplined for conduct that others who do not share the personal characteristic are not disciplined for.
Note: This is enough to file a complaint. However, the respondent may have an explanation. At a hearing, the complainant must prove the ground was a factor in the adverse impact.
A union is not required to support its members on all grievances against employers. If a union decides, for reasons unrelated to the personal characteristics, that it will not support an employee’s grievance, then the member does not have a basis for a complaint under the Human Rights Code. You may have a complaint to the BC Labour Relations Code under section 12 of the Labour Relations Code.
Only the union or association can be a respondent under s. 14 of the Code.
There is one main defence to discrimination regarding membership in a union or association, where the respondent proves its conduct was justified. There is also one specific defence. Learn more:
If the complainant proves that the respondent’s conduct had negative effect on them regarding membership in the union or association, and that a personal characteristic was a factor in the negative effect, this is called a prima facie case of discrimination.
Even if a complainant proves a prima facie case of discrimination, a respondent may argue that there is no discrimination because its conduct was justified.
Section 14 of the Code does not explicitly include a justification defence, but the Tribunal has interpreted the section to allow for it.
To succeed with this defence, a respondent must prove three things:
Proof that a respondent reasonably accommodated a complainant’s disability may also require the respondent to show that it took any necessary steps to inform itself of the nature of the complainant’s medical condition, prognosis, and capabilities (including limitations or restrictions) for work.
It is not enough to point to some hardship and say no more could be done. A respondent must prove undue hardship by giving evidence about the effect that the accommodation would have on the respondent.
For example, if a respondent relies on excessive cost, it must prove both the costs of the requested accommodation, and how this cost would result in undue hardship to it given its financial situation. It is not enough to rely on the high cost of accommodation without showing the respondent cannot reasonably afford it.
A complainant must participate in the search for accommodation. The respondent may establish a justification defence where it proves that it was taking all reasonable and practical steps but the process failed because the complainant did not reasonably participate or rejected a reasonable offer of accommodation.
If a complainant’s criminal conviction was a factor in negative treatment, it is a defence if the criminal conviction is related to the membership in the organization. The Tribunal will consider all of the circumstances of the case, including: