The Mechanics of the Response: A Strategic Guide to Form 2 (Employer's Response)
First Impressions Matter: Drafting a Fact-Based Response to the BCHRT When a complaint is served, the "Response to Complaint" (Form 2) is an employer's first opportunity to set the record straight.
When an employer receives a "Notice of Complaint" from the BC Human Rights Tribunal, the initial reaction is often defensive or emotional. However, the Form 2 (Response to Complaint) is perhaps the most critical document in the entire legal process. It serves as the employer’s opportunity to frame the narrative and provide the Tribunal with the necessary context that the complainant may have omitted. A well-drafted response is not just a denial of allegations; it is a strategic roadmap for the defense.
Effective responses focus heavily on documentation rather than rhetoric. In BC, the Tribunal looks for evidence of "Bona Fide Occupational Requirements" (BFOR). This means the employer must prove that any standards applied to the employee were adopted for a purpose rationally connected to the performance of the job, were adopted in an honest and good-faith belief that they were necessary, and that it would be impossible to accommodate the employee without "undue hardship."
A common mistake in Form 2 is failing to address the specific "protected ground" cited by the complainant. If an employee alleges discrimination based on physical disability, the response must meticulously detail every attempt at accommodation made by the company. It should include dates of meetings, copies of emails offering modified duties, and any medical information that was considered at the time.
Finally, the response should be professional and objective. Attacking the character of the complainant—even if the employer feels the complaint is "disgruntled" or "retaliatory"—often backfires. The Tribunal is interested in whether the Human Rights Code was violated, not whether the employee was a "star performer." By sticking to a fact-based, evidence-supported timeline, employers demonstrate that they took their legal obligations seriously, which can lead to an early dismissal of the complaint through a Section 27 application.
Manager’s Checklist: Executing the Duty to Inquire
Phase 1: Recognition & Observation
[ ] Identify the "Red Flags": Have you observed sudden, dramatic changes in performance, attendance, or behavior (e.g., a high performer becoming erratic, emotional outbursts, or chronic lateness)?
[ ] Rule out the "Normal": Is this behavior a significant departure from the employee’s established baseline or societal workplace norms?
[ ] Check for Ground Connection: Is there a reasonable basis to suspect the change might be related to a protected ground under the BC Human Rights Code (e.g., physical/mental disability, family status, or substance use)?
Phase 2: The Compassionate Inquiry
[ ] Select a Private Setting: Ensure the conversation happens in a confidential, non-threatening environment.
[ ] State the Facts, Not the Diagnosis: * Avoid: "I think you’re depressed."
Use: "I’ve noticed you’ve missed four deadlines this month, which is unlike you. I’m concerned—is there anything going on that we can support you with?"
[ ] Ask the "Magic Question": "Are there any barriers in the workplace—or factors we should be aware of—that are impacting your ability to perform your duties?"
[ ] Reiterate Support: Remind the employee of available resources, such as an Employee Assistance Program (EAP) or your internal accommodation policy.
Phase 3: Information Gathering (The "Need to Know" Rule)
[ ] Focus on Limitations, Not Diagnosis: Remember that in BC, you are generally entitled to know the restrictions (e.g., "cannot lift over 10lbs" or "needs a quiet space"), not the specific medical diagnosis.
[ ] Request Functional Information: If the employee confirms a need, ask for a functional assessment from their healthcare provider that outlines what they can and cannot do.
[ ] Maintain Confidentiality: Ensure all medical notes are stored in a separate, secure file—not the general personnel file.
Phase 4: Assessment & Implementation
[ ] Review Against Undue Hardship: Can the requested changes be made without creating significant safety risks or unaffordable costs?
[ ] Document the Search for Options: Even if the employee’s "preferred" accommodation isn't possible, have you documented the alternative "reasonable" options you explored?
[ ] Establish a Review Date: Accommodation is a process, not a one-time event. Schedule a follow-up to see if the changes are working.