Essentials: Political Belief Discrimination
Update by Erin Brandt, Cofounder
Background
Mr. Bratzer was a police officer with the Victoria Police Department (“VicPD”). He was also a member of a US based non-profit advocating for decriminalizing drugs called LEAP (i.e. Law Enforcement Against Prohibition).
With LEAP, Mr. Bratzer publicly advocated for decriminalizing drugs through public speaking engagements and public articles. For the most part, Mr. Bratzer clarified publicly and to his supervisors that he was speaking as an individual, during his free time, and not as a police officer. He clarified that he would continue to enforce existing drug laws while supporting decriminalization on his own time.
After a particularly contentious article, Mr. Bratzer’s employer started imposing restrictions on Mr. Bratzer’s personal advocacy activities, and as Mr. Bratzer continued his advocacy work additional issues arose between Mr. Bratzer and his employer. Approximately four years following the first incident, Mr. Bratzer filed a human rights complaint with the BC Human Rights Tribunal (Bratzer v Victoria Police Department (No. 3), 2016 BCHRT 50) in which he alleged that his employer discriminated against him on the basis of political belief.
Decision
The Tribunal restated the legal test for establishing a violation of the BC Human Rights Code (see Moore v British Columbia (Education), 2012 SCC 61). Specifically, Mr. Bratzer needed to show that:
He is a member of a protected group
He suffered an adverse consequence regarding his employment
His membership in the protected group was a factor in the adverse consequence
While the Tribunal did not attempt to define “political belief”, the Tribunal provided the following comments:
The freedom to hold and to express one’s political opinions is one of the touchstones of our democracy
Freedom of speech is not absolute and must be balanced against other important values
Political beliefs are not limited to beliefs about or involvement in recognized or registered political parties
The scope of political belief is to be determined on the facts and circumstances of each case
Beliefs about the organization and governance of First Nations communities are political
Disputes about the business model of an organization, business decisions taken, disputes about the organization of the workplace or labour relations issues do not to fall within the meaning of political belief
Advocacy for changes to drug laws or engagement in discussion regarding the levels or costs of municipal policing may both be classified as political belief; they involve public discourse on matters of public issue which involve or would require action at a government level
Restrictions placed on the mode of expressing political beliefs may interfere with holding or expressing a political belief and, if they do, discrimination on the basis of political belief occurs
The protection of political belief must involve an expansive protection of both the beliefs and their manner of expressions, with minimal impairment of free expression
The expression of political beliefs need not be polite; within certain broad limits, strong language in support of strongly held views should not be discouraged
The Tribunal found that with respect to 6 of the 8 alleged incidents, Mr. Bratzer’s employer discriminated against him because of restrictions they placed on Mr. Bratzer’s ability to express his political views. On the remaining 2 incidents, the Tribunal found that the tone of Mr. Bratzer’s statements went beyond acceptable public advocacy for a police officer in Mr. Bratzer’s position.
The VicPD was ordered to cease contravening the Human Rights Code, to refrain from committing the same or similar contraventions and to pay Mr. Bratzer $20,000 as compensation for the injury to his dignity, feelings and self-respect.
Key Take Away for Employees
An employee who expresses a political view has a right to be free from discrimination at work. While employees have a lot of leeway to express views that are unpopular, or to use strategies that are not polite, there are limits to this free speech where an employee’s speech has a real potential to negatively impact their ability to do their job or their employer’s operations.
Key Take Away for Employers
It is reasonable to require that employees express their political beliefs respectfully.
In some cases where an employee steps over the line of acceptable advocacy, discipline may be justified. But discipline must be appropriate in the circumstances. An individual’s role and the nature and degree of visibility of their expression should be considered.
