DISABILITY AND HUMAN RIGHTS
The British Columbia Human Rights Code says you cannot be discriminated against because you have a disability. The British Columbia Human Rights Commission has interpreted the concept of disability very broadly. For example, many health conditions such as heart disease, learning disabilities, asthma, HIV/AIDS and depression have been considered to be a disability.
PUBLIC SERVICES AND FACILITIES
What are my rights?
You have the right to have access to facilities, and to receive services from:
- restaurants, movies, malls, public washrooms, stores, and other places of business
- government offices such as social services, health centres and licensing agencies
- buses, taxicabs, and other public transportation
- educational facilities such as schools, colleges and universities
Ms. J has cerebral palsy. She went to a restaurant for dinner and the manager asked her to leave because he thought that she was drunk. She took her case to the British Columbia Human Rights Commission. A tribunal that heard her complaint decided that the restaurant had discriminated against her because of her physical disability.
There may be times when you are refused access to the facilities and services listed above because of your disability or because of the presence of your dog guide. The owner has to be able to show that he or she has a good reason to deny you access because it would cause undue hardship to the owner. For example, an owner of a restaurant located on the third floor of an old building might be able to show that it would be financially impossible to renovate the building in order to accommodate persons in wheelchairs.
Mr. Q uses a wheelchair. He went to a movie theatre and was told that the only place that he could sit was right at the very front of the theatre, as there was nowhere else to put his wheelchair. He filed a human rights complaint, and a bearing concluded that the theatre had a responsibility to provide spaces for wheelchairs at a reasonable distance from the screen.
What are my rights where, I live?
A landlord, including a co-op housing association, cannot refuse to rent you an apartment or a house because you have a disability or because you have a dog guide. A landlord cannot charge you a higher rent or a higher security deposit because of your disability or because you have a dog guide nor can the landlord treat you differently than other tenants. If you are already renting and you become disabled, the landlord cannot evict you because of your disability. A landlord has a responsibility to accommodate your disability up to the point of undue hardship to the landlord. No one can refuse to sell you a house or condominium because of your disability.
A landlord refused to rent an apartment to Mr. B because he has AIDS. Mr. B filed a human rights complaint. A tribunal that heard his complaint found that AIDS is a disability under the Human Rights Code. It is discrimination to refuse to rent the apartment to Mr. B because he has AIDS.
Can an employer discriminate against me when advertising a job?
An employer cannot advertise a job in a way that discriminates against you because you have a disability.
Can an employer refuse to hire me because of my disability?
An employer cannot discriminate against you because you have a disability or because you have a dog guide. When you apply for a job, the employer must evaluate you based on your ability to perform the essential parts of the job, rather than assuming you cannot do the job because of your disability. An employer can refuse to hire you if the job has specific requirements and you are unable to meet them. For example, the job may require you to drive a vehicle on a regular basis. If you are unable to do this because of your disability, the employer may have a right to refuse to hire you. If the employer denies you employment because of your disability, he or she must be able to prove that the job requirements are reasonable and necessary for the job.
Ms. L said that she was not hired for a job as a retail sales manager because she had a cleft palate. During the interview, the employer bad discussed her speech and disability. She filed a complaint with the British Columbia Human Rights Commission. A tribunal that heard her complaint found that her disability did not affect her ability to do the Job and that she had been discriminated against by the employer when he refused to hire her
Can an employer discriminate against me on the job because of my disability?
An employer cannot discriminate against you with respect to any terms or conditions of employment because you have a disability or because you use a dog guide. This means that you have a right to the same wages, hours of work and benefits as other employees doing the same job.
Can I be fired or laid off or demoted because of my disability?
No. An employer cannot fire you, lay you off, or demote you because of your disability, or because of the presence of your dog guide unless you can no longer perform the essential components of your job.
A coal mine fired Mr. P because they learned that he was a diabetic and needs insulin. Mr. P felt that he was doing the job and his diabetes did not affect his performance. A tribunal that heard his complaint ruled that having diabetes did not affect Mr. P's ability to do his job as a miner.
What responsibility does an employer or union have to accommodate my disability?
An employer has a duty to reasonably accommodate your disability (including the presence of your dog guide) up to the point of "undue hardship" to the employer. In determining what is undue hardship, the British Columbia Human Rights Tribunal looks at factors such as how much the accommodation will cost the employer, the size of the employer's work force, the impact on a collective agreement, and safety considerations. Accommodating your disability can mean different things in different situations. It may mean that your boss must provide additional training before you start the job. It may mean that your employer adjusts your work schedule to accommodate your disability. She or he may restructure the job so that you are able to do it or give you another job that you can do. The company may buy new equipment or modify equipment that they already have so that you can use it. Your union also has to accommodate your disability up to the point of undue hardship. The union has to consider both your situation and the rights of other workers under the collective agreement when deciding how to accommodate your disability.
What can I do if I have been discriminated against because of my disability?
It's very important to keep a record if you have been discriminated against because of your disability. Keep track of times and dates, and witnesses, if any. Witnesses may include people who were there when the discrimination happened, and people you spoke to afterwards. Write down exactly what each of you said, and how you felt.
If you need support or legal advice about what to do, you may want to contact members of the Vancouver Island Dog Guide Society.
- File a complaint with the BC Human Rights Commission
Phone or write the British Columbia Human Rights Commission. A human rights officer will tell you if you have grounds for a complaint under the Human Rights Code. The officer will assist you with the necessary forms. You need to file a complaint within one year of the incident. In special cases, the Commission may extend this time limit. Services provided by the Commission are free.
How long can the process take?
If your complaint goes all the way to a hearing before a tribunal, it can take up to two years. If a settlement is reached before a hearing, it will not take as long.
Do I need a lawyer to file a complaint?
No. However, you may want a lawyer if your case goes to a hearing before the Human Rights Tribunal. If you want to talk to a lawyer, contact your local Legal Services Society office. You will, find their number in the white pages of the phone book under Legal Services or Legal Aid.
What happens when I file a complaint?
Sometimes the human rights officer can help you settle a complaint without having to go through the formal complaint process. The officer can contact the person you are making the complaint about and try to mediate an agreement that you are both satisfied with. The officer will not do this without your permission.
If you cannot reach an agreement, the officer will recommend that your complaint be dismissed by the Commission or go to investigation,
What can I expect during the investigation?
The officer will speak separately with you, with the person you complained about, and with any witnesses either of you think might help explain what happened. If you and the person you complained about both agree, you may meet together with the officer.
The officer then prepares a report for the Commission. Both you and the person you are complaining about get a copy of the report. You can give more information to the Commission up to 30 days after you receive the report.
What happens next?
Based on the officer's report and any information sent in response to it, the Commission will decide to either dismiss your complaint or to refer it to a hearing before the Human Rights Tribunal. If there is a hearing, you will be told the date, time and place. You can contact a lawyer to act for you at the hearing. Legal aid will be available to you (look in the white pages of the phone book under "Legal Aid").
What happens at a hearing?
At a hearing, both you and the person you have complained about present your stories to a member or panel of the Tribunal. This evidence is given under oath. You can have witnesses at the hearing and give the member or panel any other information that is related to your complaint.
What happens after a decision is made?
After the hearing, the Tribunal member or panel makes a decision and gives reasons for this decision in writing. You cannot appeal this decision through the Tribunal. If the Tribunal member or panel decides you have not been discriminated against and you wish to challenge this decision, you can ask the British Columbia Supreme Court for a judicial review. You will need a lawyer to do this. The person you have complained about may also ask for a judicial review of the hearing decision.
If the Tribunal member or panel decides that you have been discriminated against, the member or panel will make an order prohibiting further discrimination against you or other people.
In addition, the Tribunal member or panel may order that you get:
- your job back, or the apartment you were trying to rent or whatever else you lost by being discriminated against
- money for wages you may have lost or money that you may have lost because of the discrimination
- money for injury to your feelings
- Can anyone do anything to me if I file a human rights complaint?
No. Law from any retaliation protects you and your witnesses once you have laid human rights complaint. Your employer cannot fire or suspend you, and your landlord cannot evict you. They cannot harass you or intimidate you. If they do you can file a separate human rights complaint.
What is mediation?
Mediation can happen at any stage of the complaint. Mediation is a process where an officer talks with you and with the person you have complained about. They assist you to come to some kind of solution acceptable to both of you. Your complaint will not go to a formal hearing if it is resolved at this stage. Mediation can happen when you make your first phone call, during the investigation or after a hearing has been scheduled.
Who Can Help?
The Vancouver Island Dog Guide Society may be able to help you if you have been discriminated against. If you need assistance, feel free to contact us.
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