Human rights law requires employers to maintain a discrimination-free workplace. Employers who fall short of this goal may be subject to a human rights complaint. Employees who discriminate against their co-workers can be held individually liable for their conduct. This has been the law for a very long time – much longer than “Diversity, Equity, and Inclusion” or “DEI” programs have been around.
Workplace DEI programs can make a valuable contribution to ensuring that employers and employees understand these legal obligations. DEI workshops and trainings can help people understand how unconscious bias may influence their thinking and conduct, or how the language they use can impact those around them. Initiatives aimed at an organization’s hiring and promotion practices can promote fairness and confront issues of favouritism and prevent impermissible considerations, such as applicants’ age, gender, disability, and family status, from influencing the hiring process.
DEI initiatives can also help level the playing field and ensure that groups who experience exclusion and disadvantage have equal access to opportunities. One of the purposes of BC’s Human Rights Code is to “identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code” – in other words, to rectify systemic discrimination and inequality.
Canadian human rights law has always required substantive equality, also known as equity. Substantive equality prioritizes equal outcomes for people and groups, not just equal treatment. Formal equality, on the other hand, involves simply treating everyone the same, regardless of other factors. This is a “thin and impoverished” view of equality, according to the Supreme Court of Canada.[i] Sometimes, achieving equity will require groups to be treated differently in order to respond to the historic and ongoing barriers they face. According to the Supreme Court, “Under a substantive definition of equality, different treatment in the service of equity for disadvantaged groups is an expression of equality, not an exception to it.”[ii]
This point was highlighted by the BC Human Rights Tribunal in Miller v. Union of BC Performers, 2020 BCHRT 133.[iii] The Union of BC Performers (“UBCP”) advertised a writing workshop for its members. At the top of the advertisement, it said “preference will be given to indigenous, LGBTQ+ and diverse Members” [as written]. Ms. Miller, a white-presenting heterosexual woman, assumed that she would not be welcome to attend the workshop. She opted not to apply and filed a human rights complaint alleging that, in expressing this preference, the UBCP discriminated against her based on her ancestry, sexual orientation, sex, place of origin, colour, race, and gender identity, contrary to the Code.
In dismissing the complaint, the Tribunal noted that the “heart of the Code’s purposes is promoting substantive equality and fostering a more equitable society.” Despite these lofty goals, however, we continue to live in a deeply unequal society. The Tribunal explained:
Features like race, religion, disability, sexual orientation and gender expression have long been used – and continue to operate – to oppress, exclude, and marginalize. To ignore the unique context of discrimination against groups – historical and present day – and suggest that equality simply requires everyone to be treated the same would result, inevitably, in further discrimination and deeper inequality. Put a different way, treating all people the same is often the very source of serious inequality.
Substantive equality, the Tribunal explained, “will often require that groups be treated differently, in order to effectively respond to the specific historical, cultural, or social context that continues to create barriers to full and free participation in economic, social, political and cultural life.”
The Code contains explicit protections for organizations and programs that further substantive equality. Section 41 of the Code allows not-for-profit organizations to grant a preference to members of an identifiable group where the organization’s primary purpose is the promotion of the interests and welfare of that group. For example, in Ghinis v. United Native Nations Society, 2005 BCHRT 301, the Tribunal found it was not discriminatory for the United Native Nations Society – a charitable non-profit organization whose primary purpose was to promote the interests and welfare of Indigenous people – to prefer Indigenous applicants for its Executive Director. Rather, it was entitled by s. 41 to exercise such a preference.
Section 42 of the Code allows organizations to seek approval for “special programs” aimed at improving the conditions of disadvantaged individuals or groups. Once a special program is approved by BC’s Office of the Human Rights Commissioner, the activity is immune from a charge of discrimination.
The Tribunal pointed out in Miller that approval of a special program is not always necessary to avoid a finding of discrimination. For example, the Tribunal stated that programs that create opportunities for Indigenous people will not violate the Code whether or not they are specifically approved under s. 42, given the importance of such efforts to remedy the past and present effects of colonialism and historical trauma inflicted on Indigenous Peoples in Canada.
In Miller, UBCP’s purpose in creating the writing program was to target groups who have been historically underrepresented in film and television. Accepting that white women continue to be underrepresented in certain areas of film and television, and face myriad other forms of discrimination and disadvantage, the Tribunal pointed out that not all women are “similarly situated” in respect of these disadvantages, nor are the gains made in fighting sexism shared equally among all women. “Women with intersecting sites of disadvantage – be it race, disability, sexual orientation, gender identity, poverty, or any other number of characteristics – make progress at a much slower pace.” Recognizing the needs of racialized, disabled, Indigenous, or 2SLGBTQ+ people does not negate or deny the discrimination that women may experience because of their sex, but rather, “creates space for the understanding that equality work may need to focus on other groups.”
Ultimately, the Tribunal dismissed Ms. Miller’s complaint as having no reasonable prospect of success. The Tribunal also stated that proceeding with the complaint would not further the purposes of the Code because it could deter other organizations, employers, and others from initiatives intended to advance the interests of disadvantaged groups.
The Tribunal’s decision in Miller offers reassurance to employers, service providers, and others engaged in DEI initiatives that their efforts to promote equity and address systemic discrimination are unlikely to violate human rights law. Instead, they further the purpose of human rights, and should be encouraged.
[i] Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC) at para. 73.
[ii] R. v. Kapp, 2008 SCC 41 at para. 37
[iii] The Tribunal’s decision was upheld on judicial review: 2021 BCSC 1054, and a further appeal was dismissed: 2022 BCCA 358.