Human Rights

Aug 1

Pregnancy, maternity leave and breastfeeding

Having a baby is exciting, but it is also stressful. The last thing a mother needs while pregnant or while learning to parent a little one is worrying about losing their job. The BC Human Rights Code, the Canadian Human Rights Act, the BC Employment Standards Act, the Canada Labour Code and the Canadian Employment Insurance Act provide pregnant individuals and new parents with protection and benefits.

No Discrimination

The BC Human Rights Code and the Canadian Human Rights Act protect individuals from being discriminated against because of their pregnancy in certain areas of civil life, including employment. What this means is that an employer cannot treat an employee poorly, negatively impact their employment, or dismiss them because they are (or were) pregnant, or are breastfeeding.

In order for there to be discrimination, an individual’s pregnancy does not need to be the only factor or even the main factor of their employer’s discriminatory actions. As long as pregnancy is one of the reasons that an employer chose to treat their employee negatively, then discrimination exists. Often, the timing of an employer’s conduct can be enough to conclude that it was discriminatory. For example, when an employer decides to dismiss an employee just after they disclosed their pregnancy or while they are away on maternity leave.

When a person has been discriminated against the BC Human Rights Tribunal and the Canadian Human Rights Tribunal can order various types of compensation. This could include income that the discriminated-against individual would have earned had they not lost their job (due to the discrimination) and compensation for injury to the person’s dignity, feelings and self-respect (in other words, pain and suffering).

Both Tribunals can also order other non-monetary remedies such as implementing a program to prevent similar discrimination in the future.

You can learn more at:

The BC Human Rights Tribunal’s website: http://www.bchrt.bc.ca/
The Canadian Human Rights Tribunal’s website: https://www.chrt-tcdp.gc.ca/index-en.html

Job Protection

Under the BC Employment Standards Act and the Canada Labour Code, individuals who give birth are entitled to 17 weeks of unpaid maternity leave, and 61 weeks of unpaid parental leave.

An employer must not, because of an employee’s pregnancy or maternity leave, dismiss them or change the conditions of their employment. Rather, subject to limited exceptions, employers are required to return these employees to their position or a comparable position, upon their return from maternity leave.

You can learn more at:

The BC Employment Standards Branch’s website: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards
The Government of Canada’s website: https://www.canada.ca/en/services/jobs/workplace/federal-labour-standards.html

Employment Insurance Benefits

Employees on maternity leave may be entitled to up to 15 weeks of maternity benefits, as well as either 35 weeks of standard parental benefits or 61 weeks of extended parental benefits. Keep reading for more details on parental benefits, or you can learn more at Service Canada’s website: https://www.canada.ca/en/services/benefits/ei/ei-maternity-parental.html.

Parental leave

We focus a lot of attention on pregnancy and new mothers. However, provincial and federal laws also protect discrimination against fathers, adoptive parents, and non-birth parents in other family arrangements. While the BC Human Rights Code is a little vague when it comes to non-birth parents, the BC Employment Standards Act and federal legislation directly address protections and benefits for parents and guardians who are not birth mothers.

Job Protection

Under the BC Employment Standards Act, new parents who did not give birth (usually fathers adopting parents or non-birthing parents in other family arrangements) are entitled to 62 weeks of unpaid parental leave. For federally regulated employees, the Canada Labour Code provides 63 weeks of unpaid parental leave.

An employer must not, because of an employee’s parental leave, dismiss them, or change the conditions of their employment. Rather, subject to limited exceptions, employers are required to return parents to their position or a comparable position, upon return from their parental leave.

You can learn more at:

The BC Employment Standards Branch’s website: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards
The Government of Canada’s website: https://www.canada.ca/en/services/jobs/workplace/federal-labour-standards.html

Employment Insurance Benefits

Employees on parental leave may be entitled to up to 35 weeks of standard parental benefits or 61 weeks of extended parental benefits.

The way that “standard parental benefits” and “extended parental benefits” are facilitated can be confusing. In the most simplest terms, a parental couple is entitled to a set amount of benefits, but it can choose whether to receive those benefits during a shorter period of time (under the SPB process) or during a longer period of time (under the EPB process).

Under both the SPB and the EPB processes, the benefit entitlements are to be shared by both parents. For example, under the SPB:

Parent A = 15 weeks’ benefits | Parent B = 17 weeks’ benefits

Parent A = 35 weeks’ benefits | Parent B = 0 weeks’ benefits

If parents decide to split parental benefits, they can receive an additional 5 weeks of standard parental benefits or an additional 8 weeks of extended parental benefits, so long as no parent receives more than 35 weeks of standard benefits or 61 weeks of extended benefits.

You can learn more at Service Canada’s website: https://www.canada.ca/en/services/benefits/ei/ei-maternity-parental.html.

Family Status

The BC Human Rights Code and the Canadian Human Rights Act protect individuals from being discriminated against because of their family status in certain areas of civil life, including employment.

For federally regulated employees protected by the Canadian Human Rights Act, a worker can request accommodation in the following circumstances:

A child is under their care and supervision;
The childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
The caregiver made reasonable efforts to meet those childcare obligations through reasonable alternative solutions; and
The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

For provincially regulated employees protected by the BC Human Rights Code, discrimination occurs where a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation.

When a person has been discriminated against, the BC Human Rights Tribunal and the Canadian Human Rights Tribunal can order various types of compensation. This could include income that the discriminated-against individual would have earned had they not lost their job (due to the discrimination) and compensation for injury to the person’s dignity, feelings and self-respect (in other words, pain and suffering).

Both Tribunals can also order other non-monetary remedies such as implementing a program to prevent similar discrimination in the future.

You can learn more at:

The BC Human Rights Tribunal’s website: http://www.bchrt.bc.ca/
The Canadian Human Rights Tribunal’s website: https://www.chrt-tcdp.gc.ca/index-en.html

Sexual harassment

The BC Human Rights Code and the Canadian Human Rights Act protect individuals from sexual harassment in certain areas of civil life, including employment.

Sexual harassment can take many forms. Within employment law, there are two important definitions:

Unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. Canadian courts and tribunals use this definition most often.
The Canada Labour Code defines sexual harassment similarly: any conduct, comment, gesture or contact of a sexual nature that is likely to cause offence or humiliation to any employee; or that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

Both Tribunals can also order other non-monetary remedies such as implementing a program to prevent similar discrimination in the future.

You can learn more at:

The BC Human Rights Tribunal’s website: http://www.bchrt.bc.ca/
The Canadian Human Rights Tribunal’s website: https://www.chrt-tcdp.gc.ca/index-en.html

Sexual orientation, gender identity or expression

The BC Human Rights Code and the Canadian Human Rights Act protect individuals from discrimination relating to their sexual orientation, gender identity or gender expression in certain areas of civil life, including employment.

Sexual orientation describes an individual’s pattern of emotional, romantic or sexual attraction. Sexual orientation may include attraction to the same gender (homosexuality), a gender different than one’s own (heterosexuality), both men and women (bisexuality), all genders (pansexual), or neither (asexuality).

Gender identity is a person’s internal and psychological sense of their gender, including man, woman, transgender or non-binary. For some people, gender identity is fixed. For others, it is fluid.

Gender expression is about how a person presents their gender. It includes how a person acts and appears. It can include dress, hair, make-up, body language, and voice. How a person presents their gender may not reflect their gender identity.

Gender identity or expression can also include a person’s choice of name and pronoun, such as he, she or they.

Both Tribunals can also order other non-monetary remedies such as implementing a program to prevent similar discrimination in the future.

You can learn more at:

The BC Human Rights Tribunal’s website: http://www.bchrt.bc.ca/
The Canadian Human Rights Tribunal’s website: https://www.chrt-tcdp.gc.ca/index-en.html

Pay Equity and transparency

Pay Equity

Employers have a right to set wages based on skill, effort and responsibility. For similar or substantially similar work, they must pay their workers the same. It is unlawful for someone to be paid less than a co-worker because of their sex.

For example, if a man and a woman with the same skill set and experience are doing the same job, they must be paid equally. However, it is OK to pay one of them more than the other if one of them has stronger skills, more relevant skills, more experience or if one of them is more senior or has more responsibilities than the other.

You can learn more at:

The BC Human Rights Tribunal’s website: http://www.bchrt.bc.ca/
The Canadian Human Rights Tribunal’s website: https://www.chrt-tcdp.gc.ca/index-en.html

Pay Transparency

Employers are required to advertise an expected salary/wage or expected salary/wage range on public job postings (i.e. job postings through recruiters, job boards and job websites).

The wage/salary information should reflect an employer’s reasonable expectation for wage/salary at the time of the posting. The posted wage/salary or range of wage/salary does not preclude an applicant from requesting something higher, or an employer offering something higher.
A salary range must have a top and bottom benchmark. For example, an employer cannot post a wage range of “up to $30 per hour”. Instead, it is acceptable to say that the wage range is “from $20 to $30 per hour”.
There is no rule about how wide the wage/salary range can be. Also, there is no requirement for employers to post about expected bonuses, overtime, tips or benefits.

An employer cannot seek out an applicant’s pay history in an way, unless the applicant’s pay history is publicly accessible. This means that an employer cannot ask anyone about an applicant’s pay history.

An employer cannot retaliate against an employee for:

Inquiring to the employer about their pay
Disclosing information about their pay to another employee or applicant
Inquiring to the employer about the pay transparency report or information contained in it
Asking the employer to comply with the Pay Transparency Act
Making a report to the Director of Pay Transparency about the employer’s compliance or obligations about the Pay Transparency Act

By November 1st of every year, an employer must prepare a “pay transparency report”. Generally speaking, employers will need to collect information about the gender category of their employees and differences in pay between those categories. Employers will need to publish their reports in a publicly accessible way. The requirement for reporting will apply to employers of different sizes on a rolling basis:

Starting November 1, 2023, the provincial government and other government entities
Starting November 1, 2024, BC employers with 1000 or more employees
Starting November 1, 2025, BC employers with 300 or more employees
Starting November 1, 2026, BC employers with 50 or more employees
After 2026, either BC employers with more than 49 employees or another prescribed number

physical disability and mental disability

The BC Human Rights Code and the Canadian Human Rights Act protect individuals from being discriminated against because of their disability, whether it is a physical or mental disability, in certain areas of civil life, including employment. If an employee has a disability, then their employer must make efforts to accommodate them until the employer can no longer accommodate them. When an employer cannot accommodate one of their employees anymore, then the point of “undue hardship” has been met.

The term “undue hardship” can mean something different in different contexts. There is no hard and fast rule. Rather, each case and each employer is evaluated individually. Generally, larger employers with access to more resources will be expected to do more to accommodate their employees than smaller employers with fewer resources.

Both employers and employees are required to meaningfully participate in the accommodation process. This usually requires both parties to explore possible solutions to challenges raised by an employee’s disability.

Both Tribunals can also order other non-monetary remedies such as implementing a program to prevent similar discrimination in the future.

You can learn more at:

The BC Human Rights Tribunal’s website: http://www.bchrt.bc.ca/
The Canadian Human Rights Tribunal’s website: https://www.chrt-tcdp.gc.ca/index-en.html

religion

The BC Human Rights Code and the Canadian Human Rights Act protect individuals from being discriminated against because of their religion in certain areas of civil life, including employment.

Both Tribunals can also order other non-monetary remedies such as implementing a program to prevent similar discrimination in the future.

You can learn more at:

The BC Human Rights Tribunal’s website: http://www.bchrt.bc.ca/
The Canadian Human Rights Tribunal’s website: https://www.chrt-tcdp.gc.ca/index-en.html

Ageism

The BC Human Rights Code and the Canadian Human Rights Act protects individuals from discrimination because of their age in certain areas of civil life, including employment.

Both Tribunals can also order other non-monetary remedies such as implementing a program to prevent similar discrimination in the future.

You can learn more at:

The BC Human Rights Tribunal’s website: http://www.bchrt.bc.ca/
The Canadian Human Rights Tribunal’s website: https://www.chrt-tcdp.gc.ca/index-en.html

Political Belief

The BC Human Rights Code protects individuals from being discriminated against because of their political belief in certain areas of civil life, including employment. The Canadian Human Rights Act does not include any similar protection for political belief.

When a person has been discriminated against, the BC Human Rights Tribunal can order various types of compensation. This could include income that the discriminated-against individual would have earned had they not lost their job (due to the discrimination) and compensation for injury to the person’s dignity, feelings and self-respect (in other words, pain and suffering).

The BC Human Rights Tribunal can also order other non-monetary remedies such as implementing a program to prevent similar discrimination in the future.

You can learn more at: