What is discrimination?

Discrimination means different treatment based on a protected ground for which there is no legitimate and reasonable justification and which disadvantages an individual or group. Discrimination is prohibited under the B.C. Human Rights Code (the “Code”).

Protected Grounds

Under the Code, the protected grounds are race, colour, ancestry, place of origin, Indigenous identity, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, and age. For employees, political belief and unrelated criminal convictions are also protected grounds.

Proving Discrimination

To prove discrimination under the Code, you would have to show:

1. You have a personal characteristic (or you are perceived to have a personal characteristic) that is a protected ground under the Code.
2. A person’s conduct had a negative effect on you regarding a service or your employment.
3. The protected ground was a reason for the negative effect.

For example, you are denied access to a program at school (negative effect) because of your race (protected ground).

You do not have to prove that the protected ground was the only reason or the most important reason for the negative effect. You only have to prove that it was a reason.

When Discrimination is Permitted

There are certain situations when discrimination is permitted by law. Once you prove discrimination by meeting the three-part test above, the respondent (i.e., the discriminator) will have an opportunity to defend their conduct. The most common defence is called a bona fide and reasonable justification, or in the case of employment, a bona fide occupational requirement.

To prove a bona fide and reasonable justification or a bona fide occupational requirement (which are formal legal terms), the respondent would have to show:

1. There is a legitimate service-related or job-related purpose for the standard.
2. The respondent adopted the standard on a good-faith belief that the standard is necessary to fulfill the legitimate service-related or job-related purpose.
3. The respondent’s standard is reasonably necessary to achieve the legitimate service-related or job-related purpose, such that the respondent could not accommodate you without suffering undue hardship.

For example, in one case[1], a student requested to take a course remotely due to a disability. The college denied the student’s request because the student would not be able to fulfill the course’s core requirement of interacting with other students in person. The Human Rights Tribunal found that the standard (in-person attendance) was adopted in good faith and reasonably necessary to achieve the legitimate service-related purpose (fulfilling the requirement for in-person interaction with other students). An accommodation that requires an institution to fundamentally alter a program or lower standards within that program will generally amount to undue hardship for the institution. As a result, the student’s complaint of discrimination did not succeed.

[1] Harris v. Camosun College, 2000 BCHRT 51

For example, you are denied access to a program at school because of your race.

 

			Protected Ground

 

You do not have to prove that the protected ground was the only reason or the most important reason for the negative effect. You only have to prove that it was a reason.

Accommodation and Undue Hardship

If you prove discrimination, schools and employers have a legal duty to accommodate you to the point of undue hardship. To fulfill the duty to accommodate, the respondent must take all reasonable and practical steps to avoid the negative effect, but they are not required to take steps that would result in undue hardship.

To establish undue hardship, a school or employer may rely on financial cost, significant interference with other students’ rights, health and safety concerns, and any other relevant factors.

The respondent has to offer a reasonable accommodation to you (unless offering any accommodation would result in undue hardship). The accommodation may not be exactly what you want. But if you are offered a reasonable accommodation and you reject the offer, your complaint of discrimination will not be successful.

For example, in one case[2], a student who was contending with a disability failed a course six times. After the sixth attempt, the university removed the course from the student’s transcript, refunded his tuition, and helped the student register for the course at a local college. The student argued that the university discriminated against him because it did not provide his desired accommodation (to re-register for the course at the university for a seventh time). However, the Human Rights Tribunal found that the university provided a reasonable accommodation to the student, so the student’s complaint of discrimination did not succeed.

[2] C v. University of Victoria, 2013 BCHRT 252

What is discriminatory harassment?

Discriminatory harassment means behaviour directed towards another person that is abusive and demeaning, includes a reference to a protected ground, and leads to adverse consequences for the person harassed. It includes sexual harassment but does not include bullying (e.g. harassment with no connection to a protected ground). Bullying is handled under SFU’s Bullying and Harassment Policy (GP 47).

The Human Rights Tribunal has recognized that not every negative comment that is connected to a protected characteristic will be discriminatory harassment contrary to the Code. Usually, repeated conduct or a pattern of behaviour is required to establish discriminatory harassment. However, that is not always the case and the Tribunal has recognized that sometimes a single slur or derogatory comment based on a protected characteristic may be sufficient to establish discrimination in certain circumstances. The Tribunal will consider factors such as the relationship between the parties and their previous interactions, the egregiousness of the behaviour, the context of the interactions, the impact the behaviour had on the target, and whether an apology was offered.

For example, in one case[3], an Indigenous woman established that her landlord committed discriminatory harassment by asking, without explanation, about her drinking and drug use, commenting on the “whiteness” of her name, telling her about obtaining tax-free goods from a Métis friend and asking whether she was Métis, and asking whether her Indigenous brother could be trusted to work alone with the landlord’s belongings.

[3] Smith v. Mohan (No. 2), 2020 BCHRT 52

What is retaliation?

Retaliation means an adverse action or threatened action against a person who sought help under SFU’s Human Rights Policy (GP 18) or the Code or participated in the complaint process (e.g. as a witness). To prove retaliation, it must be reasonable to infer that the adverse or threatened action was taken because of the person’s involvement in a human rights complaint. Examples of retaliation could include revoking a positive reference letter, taking away funding, or a demotion at work.

What are your rights?

You have the right to…

File a Complaint

If you are experiencing discrimination, discriminatory harassment, or retaliation at SFU, you have the right to file a complaint with SFU’s Human Rights Office and/or the B.C. Human Rights Tribunal. To discuss your situation, please contact the Director of SFU’s Human Rights Office. We recommend reviewing the Guide to SFU’s Human Rights Policy and the Complaint Process.

Request Accommodation

You have the right to request accommodation if you experience (or will experience) a negative effect in your studies or employment at SFU because of a protected ground. Please see Accommodation Requests on our Get Help page to find out who to contact. You should request accommodation at the earliest opportunity, as it may not be possible to accommodate last-minute requests without suffering undue hardship.

Not Suffer Retaliation

We recognize that a major barrier to filing a complaint is the fear of retaliation. You might be worried about your future relationship with the respondent, finding a new supervisor, withdrawal of research funding, and getting good references. Retaliation against a student for seeking help, filing a complaint, or participating in a complaint process is prohibited under SFU’s Human Rights Policy. If you are worried about retaliation, we can create a plan in advance with your Student Advocate and other offices to minimize any potential fallout from filing a complaint.

What are your responsibilities?

You have a responsibility to…

Seek Timely Assistance

Under SFU’s Human Rights Policy and the Code, you can file a complaint within one year of the last incident of discrimination, discriminatory harassment, or retaliation. However, we encourage you to consult SFU’s Human Rights Office as soon as possible because informal resolutions are usually more successful with early intervention, people may forget important details over time, and it might be harder to find witnesses later on.

Participate in the Accommodation Process

Request accommodation as early as you can, provide the requested documentation and information, and cooperate in the process of making, reviewing, and revising an accommodation plan. Remember that accommodation only needs to be reasonable. Schools and employers do not have a duty to provide instant or perfect accommodation.

Respect Other People's Rights

You have a responsibility not to discriminate, harass, or retaliate against others. You also have a responsibility to respect other people’s rights to receive accommodation and to participate in providing accommodation when asked. Sometimes situations will involve competing rights and freedoms (e.g. where your rights conflict with another person’s rights), and this will affect a school or employer’s ability to accommodate you or another person.

Who can help you?

The Human Rights Office provides safe, timely, confidential, and impartial advice, support, referrals, and information to students on all issues related to human rights. Contact us or visit our Get Help page for additional resources.

You can contact the Human Rights Office even if you don’t have (or don’t want to make) a complaint. We can talk through a situation together, answer your questions, and help you informally resolve your concerns. We also welcome your feedback on what the Human Rights Office can do to improve your experience at SFU.