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.
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:
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.
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.
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.
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.
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.
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.
There are four steps to implementing a pre-approved special program.
To apply to the Tribunal for special program approval, complete and submit the appropriate form:
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.
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:
Failure to comply with reporting requirements can result in the Tribunal terminating its approval of the special program.
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:
If you are considering implementing a special program and have questions, please contact Devyn Cousineau, Tribunal counsel, by email or by phone at 604 775-2048.
See the list of the current special programs that have been approved by the Tribunal.
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
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>