Human Rights Round Up
There have been several developments in Canadian human rights law in recent months. In this newsletter, we address a few of them at home in British Columbia, in our neighbouring province of Alberta and in the Federal sphere.
British Columbia: Gender Identity, Gender Expression & Deleting Discrimination from Existing Laws
Gender Identity & Gender Expression
Last fall, the British Columbia Government amended the BC Human Rights Code, R.S.B.C. 1996, c. 2010 to expressly add “gender identity” and “gender expression” as protected grounds in several areas, including employment. These amendments were long sought by transgender and gender non-conforming persons who felt explicit recognition of these characteristics as prohibited grounds of discrimination would serve not only an educational function, but increase awareness that trans* persons are indeed protected by the law; something members of the trans* community at times doubted to be the case.
The BC Human Rights Tribunal defines each ground as follows:
- Gender expression is how a person presents their gender. This can include behaviour and appearance, including dress, hair, make-up, body language and voice. This can also include name and pronoun, such as he, she or they. How a person presents their gender may not necessarily reflect their gender identity.
- Gender identity is a person’s sense of themselves as male, female, both, in between or neither. It includes people who identify as transgender. Gender identity may be different or the same as the sex a person is assigned at birth. 1
With these amendments, BC joins Alberta, Newfoundland & Labrador, Nova Scotia, Ontario and Prince Edward Island in expressly recognizing both grounds in provincial human rights legislation. Manitoba, the Northwest Territories and Saskatchewan have express protection for “gender identity” only. On the Federal front, Bill C-16 passed the House of Commons last fall and aims to add both grounds to Canadian Human Rights Act. It is currently held up in the Senate.
Deleting Discriminatory Content from Existing Laws
On March 7, 2017, the British Columbia government introduced legislation to permanently repeal discriminatory provisions in historical private legislation. Prior to the introduction of this legislation, over 2000 pieces of legislation dating from 1871 to 1982 were reviewed to determine which ones discriminated on the basis of ethnicity or place of origin. This review was conducted as part of the British Columbia government’s commitment to review laws which discriminated against Chinese Canadians. In the end, 19 historical private acts were deemed to contain discriminatory provisions and will be corrected with the passage of this new legislation.
Ban on workplace footwear requirements
On April 7, 2017 the BC government announced amendments to the Workers’ Compensation Act [the “WCA“] that would ban mandatory high heel requirements in the workplace. The ban will affect the existing footwear regulation found in section 8.22 of the Occupational Health and Safety Regulation of the WCA.
In a statement, the government announced the following changes:
- The amended regulation ensures that workplace footwear is of a design, construction and material that allows the worker to safely perform their work and ensures that employers cannot require footwear contrary to this standard. To determine appropriate footwear, the following factors must be considered: slipping, tripping, uneven terrain, abrasion, ankle protection and foot support, crushing potential, potential for musculoskeletal injury, temperature extremes, corrosive substances, puncture hazards, electrical shock and any other recognizable hazard. 2
The promise follows a private members’ bill 3 introduced last month by Andrew Weaver, leader of the BC Green Party, which sought to amend the WCA by introducing a provision that would require safety standards to be the same regardless of a workers’ gender, gender expression, or gender identity. While the government did not implement Mr. Weaver’s bill and instead amended the footwear regulation in the WCA, Minister Shirley Bond recognized and thanked Mr. Weaver for his initiative and help on amending the regulation. 4
WorkSafeBC will now develop a workplace guideline in support of the amended regulation. That guideline is expected to be available at the end of April 2017.
Alberta: Age discrimination protection expanded
In January, an Alberta lawyer made an application to the Alberta Court of Queen’s Bench to expand situations where age is a characteristic protected from discrimination under the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 (the “Act“). While the Act already prohibited discrimination on the basis of age in some areas like employment and employment advertisements, age was not a protected ground in relation to tenancies, or the provision of goods and services.
The Court granted the application; however, instead of making the Order effective immediately, it was suspended until January 2018 to give the Alberta government time to work out any exemptions before the change becomes law.
Federal: Genetic Discrimination Bill
Advancements in medicine have led to growing concerns about the privacy of Canadian’s personal medical information, as well as concerns over who can lawfully access it and under what circumstances. In addition, Canadians are growing more concerned about potentially negative consequences for their human rights, employment and insurance prospects if sensitive personal medical information is disclosed. No area is more illuminating of this concern than genetic testing.
Genetic testing reveals intimate personal information about an individual’s health. If it falls into the hands of an employer or an insurance company, it is conceivable that it will be used to make decisions about that individual’s employment or insurance coverage. Although both provincial and federal human rights legislation prohibits discrimination on the basis of disability (among other protected grounds), there is currently no explicit protection from discrimination on the basis of genetic characteristics in Canada.
The federal government recently passed the Genetic Non-Discrimination Act (“Bill S-201”), a bill that will prohibit federal employers and insurance companies from requiring an employee to undergo genetic testing or disclose the results of a genetic test as a precondition to, among other things, employment.
Bill S-201 has three key parts. First, it prohibits any person from requiring an individual to undergo genetic testing as a condition of entering into or continuing a contract with that individual, or providing goods or services to that individual. It also prohibits any person from refusing to engage in these activities with an individual because they have refused to undergo genetic testing, or have refused to disclose the results of such testing.
Second, Bill S-201 amends the Canada Labour Code, R.S.C. 1985, c. L-2 to prohibit employers from requiring employees to undergo genetic testing or disclose the results of such testing. It protects employees from disciplinary action for refusing to undergo or disclose the results of genetic testing, and protects the employee from any adverse treatment on the basis of the results of genetic testing.
Third, it amends the Canadian Human Rights Act, R.S.C. 1985, c. H-6 to explicitly include genetic characteristics as a prohibited ground of discrimination. The Act will also be amended to state that discrimination on the ground of genetic characteristics will be found where an individual refuses to undergo or disclose the results of genetic testing, and suffers adverse treatment as a result.
Bill S-201 has proven to be a highly contentious piece of legislation: Prime Minister Trudeau and his entire cabinet, including the Minister of Justice and Attorney General, said the legislation was unconstitutional and voted against it. The Prime Minister recommended that members of parliament vote against the Bill on the basis that it intrudes on provincial jurisdiction. Regulating insurance schemes is typically a provincial matter under the division of powers set out in Canada’s Constitution, raising questions as to whether Bill S-201 will be challenged by the provinces soon after it comes into force.
The Bill is currently awaiting royal assent. Whether provinces and territories will follow suit by amending human rights and employment legislation in their jurisdictions will likely depend on what the provinces’ reactions are to B-S-201.
1 Personal Characteristics Protected in the BC Human Rights Code, retrieved from < http://www.bchrt.bc.ca/human-rights-duties/characteristics.htm>
2 Office of the Premier (7 April 2017) “BC bans mandatory high heels in the workplace” retrieved from https://news.gov.bc.ca/releases/2017PREM0047-001151
3 Retrieved from http://www.andrewweavermla.ca/wp-content/uploads/2017/03/Workers-Compensation-Amendment-Act-draft-3.pdf
4 Supra note 2.