Special Programs

Implementing a special program is a unique opportunity to advance equality in British Columbia. Equality means that each person is treated fairly and with dignity. It means that “no one is denied opportunities for reasons that have nothing to do with inherent ability”.1 In some cases, that means treating different people the same. In many cases, it means treating different people differently. In this way, we work towards achieving a society of mutual respect where all are equal in dignity and rights.2

This document explains what special programs are and how to apply to the Human Rights Tribunal for approval of a special program.

What is a special program?

A “special program” is any program adopted by an employer or other service provider that aims to improve the conditions for an individual or group that has faced disadvantage. It may be part of an employment equity program.

“Disadvantage” refers to historic barriers to full participation in social, cultural, economic and political life. For example:

  • Aboriginal people have been systematically displaced from their lands, excluded from political life, deprived of full cultural expression and suffered intergenerational trauma as a result of residential schools. These legacies continue to contribute to significant disparities between Aboriginal and non-Aboriginal people in education, employment, income, health and housing. Aboriginal people continue to experience racism individually and as a group.3

    An example of a special program to benefit Aboriginal people is where Aboriginal people are preferentially hired in a school district to improve educational outcomes for Aboriginal students.

  • Racialized groups have been subjected to subtle and overt racial stereotyping that has restricted their safe access to employment opportunities, housing and public space.4

    An example of a special program to benefit a racialized group is where an organization provides programming exclusively to African Canadian youth to overcome barriers and make positive changes in their communities.

  • People with disabilities have been underestimated and excluded from employment and other spheres of public life. They face barriers that are the result of a society built almost exclusively for people without disabilities.5 People with mental illnesses or disabilities have been stigmatized and marginalized.6

    An example of a special program to benefit people with disabilities is where a post-secondary education institution reserves a certain number of positions for people with disabilities to improve their employment prospects.

  • Women, as a group, continue to earn less money than men and carry a greater proportion of family caregiving responsibilities, which impacts their ability to participate in the workforce.7 They also face gendered violence including sexual and domestic assault at greater rates than men, often at the hands of men.8

    An example of a special program to benefit women is where only women are hired to work with women survivors of domestic and sexual abuse.

  • Transgender people face high levels of stigma and are at an increased risk of violence, harassment, social isolation and discrimination.9

    An example of a special program to benefit trans* people is where trans* people are given preferential hiring to work with at-risk trans* youth.

This is not a complete list.

Effect of Tribunal approval

The examples above show that special programs treat groups differently in order to achieve their specific aims and the larger goal of ensuring equality. This can mean that other groups in society are excluded from opportunities because of factors like their race or gender. For example, restricting hiring to women, Aboriginal or trans* people excludes men, non-Aboriginal or cisgender people from employment opportunities. Those groups could complain that this is illegal discrimination under the Code.

The Human Rights Tribunal has the authority to pre-approve a special program. It is not necessary for a body to get pre-approval in order to implement a special program and defend it against a claim of discrimination. However, the benefit of the Tribunal pre-approving a special program is that, for so long as that approval is in place, the special program cannot be considered to discriminate.10

This protection only applies to the terms of the special program and not to other discriminatory behaviour.

For example, a special program approval to hire only women cannot be found to discriminate against male job candidates. However, if the employer favours white women applicants, that would still be prohibited discrimination under the Code.

Implementing a special program

There are four steps to implementing a pre-approved special program.

Step one: apply

To apply to the Tribunal for special program approval, complete and submit the appropriate form:

Step two: wait for a decision

The Tribunal will make a decision about your special program application within 30 days. If there is any urgency to your request, please indicate that on your application.

In some cases, the Tribunal may require further information before it can make a decision. In that case, applicants will be contacted to request the information. This may delay the 30 day timeline.

The Tribunal will issue its decision in a letter to the applicant and any affected third parties.

Step three: accountability and monitoring

If a special program is approved, the Tribunal will identify any reporting requirements in its decision letter. Generally, organizations are required to report on the progress of the special program intermittently throughout the duration of the program. The progress report should identify:

  • what actions the organization has taken as part of its special program;
  • any barriers the organization has faced in implementing its special program, and how it has addressed those barriers;
  • whether and to what extent the special program is meeting its goal of ameliorating disadvantage faced by the target group; and
  • any other information requested by the Tribunal.

Failure to comply with reporting requirements can result in the Tribunal terminating its approval of the special program.

Step four: renewal

All special program approvals are time-limited. Generally the Tribunal will approve a special program for a period from 6 months to 5 years. After that, it can be renewed based on a renewal application. To apply to renew a special program, complete and submit the proper form:

For further information

If you are considering implementing a special program and have questions, please contact Barbara Korenkiewicz, Tribunal counsel, by email or by phone at 778 609-2032.

See the list of the current special programs that have been approved by the Tribunal.

1 Canada. Commission of Inquiry on Equality in Employment. Report of the Commission on Equality in Employment. Ottawa: Supply and Services Canada, 1984 at p. 2 (the “Abella Report”)

2 Human Rights Code, R.S.B.C. 1996, c. 210, s. 3

3 Canada. Truth and Reconciliation Commission. Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015 (“TRC Report”) at p. 135 ff; R v. Kapp, 2008 SCC 41 at para. 59

4 See eg. Radek v. Henderson Development (Canada) Ltd., 2005 BCHRT 302 at paras. 475-482

5 Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 181

6 Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 SCR 566 at para. 31

7Abella Report; Kendra Milne, “High Stakes: The impacts of child care on the human rights of women and children” (July 2016), online: West Coast LEAF <www.westcoastleaf.org>

8Cecilia Benoit et al, “Issue Brief: Sexual Violence Against Women in Canada,” Issue Brief commissioned by the Federal-Provincial-Territorial Senior Officials for the Status of Women Canada (December 2015), online: Status of Women < http://www.swc-cfc.gc.ca>

9 Ontario Human Rights Commission. Policy on Harassment and Discrimination Because of Gender Identity. Approved March 30, 2000, updated 2009, online: Ontario Human Rights Commission <http://www.ohrc.on.ca>

10 Code, s. 42(3)