Weaponizing the Anti-Discrimination Policy
From Paper to Practice: Building a Policy That Actually Defends You A policy gathering dust in an employee handbook is no defense.
Every BC employer has a "Human Rights Policy" or an "Anti-Discrimination Policy" in their employee handbook. However, during a BCHRT hearing, a piece of paper is not a defense. The Tribunal is far more interested in whether that policy was "lived" by the organization. A policy that is not enforced, not understood by staff, and not supported by a clear reporting structure is legally useless.
A robust defense begins with the Meorin Test, a legal standard derived from the Supreme Court of Canada. To defend a policy or standard, an employer must show it was adopted for a purpose rationally connected to job performance and that it was "reasonably necessary" to accomplish that purpose. This requires more than a generic template; it requires a policy tailored to the specific risks of the industry, whether that is retail, construction, or tech.
Furthermore, a policy must have "teeth." This means having a clear, multi-channel reporting mechanism where employees can lodge complaints without fear of retaliation. If a supervisor is the one accused of discrimination, the employee must have an alternative path, such as an HR director or an external ombudsperson. Documenting the training of managers is also vital. When an employer can produce signed attendance sheets from a "Human Rights in the Workplace" seminar, it proves to the Tribunal that the organization took its preventative duties seriously.
Finally, an effective policy must be coupled with a prompt and thorough investigation process. When a complaint is made internally, the employer must act quickly, interview witnesses, and take appropriate corrective action. If the Tribunal sees that an employer conducted a fair internal investigation and attempted to fix the problem, they are far less likely to award significant damages. In BC, a "paper policy" is a liability, but a "practiced policy" is a shield.
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.