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Preference to disadvantaged groups not discrimination against others

November 16, 2022

By HR Reporter |

“There’s nothing wrong with having some kind of a program or workshop that is just targeted at a historically and presently underrepresented or disadvantaged group in society – the groups being [negatively] affected are ones that generally do not face discrimination in their day-to-day lives.”

So says Ryan Macklon, a lawyer at Kent Employment Law in Vancouver, after the British Columbia Court of Appeal upheld a decision by the province’s Human Rights Tribunal dismissing a discrimination complaint related to a union’s workshop that preferred applicants from certain disadvantaged groups.

“It’s fine to have a program like that, as long as you are advancing the purposes of the [Human Rights Code], which is equality and preventing and prohibiting discrimination in the workplace,” says Macklon.

Enrolment preference
The worker was a member of the Union of British Columbia Performers (UBCP), which is a trade union under the BC Labour Relations Code that represents various types of performers in the province.

In March 2019, the UBCP sent an email to its members announcing a writing workshop, but enrolment preference would be given to “Indigenous, LGBTQ+ and diverse members.”

The worker didn’t apply for the workshop, but five months later she filed a human rights complaint. The worker, who identified as a biracial heterosexual woman, alleged that the UBCP discriminated against her based on her sexual orientation and ancestry and that the union had “decided that heterosexual women deserve less support than ethnic minorities and LGBTQ members.”

The worker also argued that the UBCP was aware of the abuse women dealt with when trying to get into filmmaking and it had used discriminatory practices for years. She demanded compensation for the alleged discrimination along with a statement from the union that its conduct was discriminatory.

The UBCP applied to dismiss the complaint without a hearing, pointing out that she didn’t enroll in the writing workshop and arguing that preferential enrolment to Indigenous, LGBTQ+ and diverse members promoted the purposes of the BC Human Rights Code. The code states that organizations granting a preference to members of certain identifiable groups, such those identified by sexual orientation and gender identity or expression, didn’t contravene its provisions.

There was also evidence that there had been room in the workshop, making it possible that the worker would have been accepted had she applied.

The worker replied that she hadn’t applied because she chose not to “expose herself to contempt” and she shouldn’t have to apply, get rejected for discrimination, and allow injury to her dignity to prove discrimination.

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