The BC Human Rights Tribunal has partially dismissed a discrimination complaint brought against the Board of Education of School District No. 38 (Richmond) while allowing key aspects related to an alleged discriminatory comment by a supervisor and the employer’s handling of a subsequent medical leave and return-to-work accommodation to proceed to a hearing.
The July 2020 complaint centred on claims that the Board failed to uphold a discrimination-free workplace and accommodate the complainant’s mental disability after a distressing workplace interaction.
Tribunal Member Beverly Froese concluded that while the complainant’s allegation over the allocation of certain job responsibilities to a colleague did not raise facts that, if proven, could amount to discrimination under British Columbia’s Human Rights Code, other portions of the complaint — most notably those involving a supervisor’s purported off-hand, gendered remark and a failure to investigate or accommodate — warrant a full hearing.
Workplace conversation
According to the complaint, filed by K.S.K., the Board allegedly discriminated on the grounds of mental disability, sex, and family status. The complainant said they were adversely affected by a workplace conversation in June 2018, during which a supervisor allegedly made a comment diminishing the complainant’s professional worth and implicitly referencing their family circumstances.
The alleged remark, as recalled by the complainant, suggested they could “be like [the supervisor’s] wife and just work out” instead of working. The complainant said this comment felt demeaning, implying that as someone perceived to be a woman from a wealthy background, their appearance rather than their work held value. The supervisor denies making the alleged comment.
Before the Tribunal, the Board sought to dismiss the complaint under several provisions of the Human Rights Code. It argued the complaint was filed late, that many of the alleged acts did not amount to discrimination, and that the case had no reasonable prospect of success. While the Tribunal agreed that some allegations were not timely and lacked sufficient nexus to a protected characteristic, it declined to dismiss the entire complaint.
At issue was whether the alleged comment and the Board’s subsequent responses formed a continuing contravention of the Code. The Tribunal found the complainant’s claims about the alleged comment, their resulting medical leave for mental health reasons, and the Board’s handling of their return-to-work in 2019 were sufficiently connected to be considered as one continuous series of events. The Tribunal held that the complaint included timely allegations—specifically those stemming from communications in August 2019, when the complainant expressed feeling unsafe communicating with the supervisor. At that juncture, the complainant requested a teaching evaluation to seek employment elsewhere, alleging the Board failed to adequately respond, investigate, or accommodate.
The Tribunal’s reasons stressed that under the Code, employers have a duty to maintain a discrimination-free workplace and respond to potential discrimination when alerted. The decision noted that this obligation includes investigating, making inquiries, or accommodating employees who may be experiencing discriminatory conduct or its effects. In this case, the Tribunal determined that there were genuine issues of fact in dispute that could not be resolved without hearing oral evidence and cross-examination.
Employer’s argument that single remark can’t be discrimination rejected
For human resources professionals and employment lawyers, the decision underscores the importance of recognizing when a single alleged comment or isolated incident may rise to the level of discrimination, particularly if it is linked to ongoing adverse effects on an employee’s mental health or workplace status. The Tribunal declined to accept the Board’s argument that a single off-colour remark, if made, would be insufficient to constitute discrimination. Context, the decision indicated, matters.
If the comment and its fallout interfered with the employee’s return-to-work efforts and connected to protected grounds — such as sex, family status, or mental disability — then a full hearing may be necessary.
The Board maintained that it had no knowledge of any discrimination concerns before the August 2019 email, when the complainant indicated feeling unsafe about contacting the supervisor. The Board said it relied on the collective agreement and standard processes to manage absences and return-to-work scenarios, and noted that it made the complainant’s former job available and suggested other possible positions. According to the Board, the complainant either did not pursue these opportunities or declined them for personal reasons. The Board argued that the complainant provided insufficient medical or other information linking their disability to their difficulties returning to the workplace, thus never clearly triggering a duty to accommodate.
The complainant, however, maintained that the Board failed to adequately inquire into their circumstances or meaningfully explore possible accommodations. In their view, the Board should have taken steps to investigate after learning that the complainant felt unsafe due to past commentary from the supervisor and was unable to return to work under direct or indirect supervision from that individual. The complainant said their mental health issues, linked to the alleged event, required more than just a procedural adherence to the collective agreement—what was needed was a tailored accommodation approach.
Hearing allows credibility, context to be assessed
The Tribunal concluded that resolving these conflicting narratives would require a hearing, where credibility and context could be properly assessed. While the Board pointed to affidavit and documentary evidence to suggest it acted reasonably, the Tribunal found that such material was not sufficient, on its own, to dismiss the complaint without a hearing. Fundamental factual disputes—such as whether the supervisor made the alleged comment, and if so, what effect it had—must be addressed by considering testimony and potentially cross-examining witnesses.
In addition, the Tribunal rejected the Board’s suggestion that accepting certain allegations as continuing contraventions would effectively encourage employees to wait until a late stage before alleging discrimination. In the Tribunal’s view, the nature of mental health effects and the complainant’s protracted absence were plausible explanations for gaps in time between the alleged acts. The Tribunal emphasized the need to ensure a fair, contextual approach, especially given the seriousness of the allegations and their significance for all parties involved.
In the end, the Tribunal dismissed the part of the complaint alleging discrimination in the distribution of work duties. However, it allowed the complaint to proceed with claims that the supervisor’s alleged comment and the Board’s failure to respond and accommodate may have constituted discrimination based on the complainant’s mental disability, sex, and family status. As a result, the matter will now advance to a hearing stage, where a fuller evidentiary record and oral testimony can shed light on the complex issues raised by both sides.
For more information, see Kwan v. Board of Education of School District No. 38 (Richmond), 2024 BCHRT 296 (CanLII).
