Employees often hold back complaints because they fear retaliation without realizing that human rights legislation protects them. Retaliation as a result of an employee being named in a complaint, participating in an inquiry or giving evidence against a colleague is prohibited under the BC Human Rights Code.
An example of retaliation is an employee being punished because they filed a human rights complaint against their employer. Another example of a retaliatory violation could involve an employer refusing to hire someone deemed a “troublemaker” because the individual might have complained about a previous employer.
It is a good idea for workers to become familiar with their rights under the Human Rights Code. In order to make out a successful complaint that an employee was the subject of retaliation, they must establish three things: that there was bad treatment; that the respondent had knowledge of a protected action; and that the bad treatment followed the complainant’s complaint or inquiry.
Conduct of a respondent that would constitute bad treatment includes the following:
- Denying a right or benefit
- Imposing a penalty
- Discharging (firing)
The complainant alleging retaliation must show that at the time they were subject to bad treatment, the respondent was aware of any of the following:
- The complainant made or might make a complaint, or is the subject or might be the subject of a complaint.
- The complainant participated in or might participate in an inquiry under the Code.
- The complainant gave or might give evidence or offer help in a complaint.
Bad treatment following an inquiry or complaint
Bad treatment does not on its own necessarily mean that a complainant is being retaliated against. There are two ways a complainant can show that they were the subject of retaliation:
- If they can actually prove that the respondent intended to retaliate; and/or
- If they can show that a reasonable person would view the bad treatment as retaliatory based on the facts.
Employees who believe their human rights have been violated might be concerned about whether their complaint will be accepted. They may also have questions about the procedures required to file a complaint related to retaliation in the workplace. It is always a good idea to seek legal advice and guidance in cases involving employment and human rights law.