Discrimination in non-government employment settings is defined by statute; what is prohibited or permitted will vary from jurisdiction to jurisdiction.
The BC Human Rights Code says that, in employment, a person must not
discriminate against a person regarding employment or any term or condition of employment because of gender identity or expression" (s. 13).
However, s. 42 deems that it is not discrimination to adopt an equity program that "has as its objective the amelioration of conditions of disadvantaged individuals or groups who are disadvantaged because ... sex, sexual orientation, or gender identity or expression." The BC Human Rights Tribunal and the Court of Appeal for British Columbia have both held that such preferential treatment does not require prior approval: see Reid et al. v. Vancouver (City) et al. (No. 5), 2000 BCHRT 30 at para 204; Miller v. The Union of British Columbia Performers, 2022 BCCA 358 at paras. 52, 54, 59.
The question will turn on whether the distinction is:
- with respect to a disadvantaged group
in the sense that it furthers substantive equality (Miller at para. 58):
... a program that distinguishes between individuals based on a protected ground to ameliorate the conditions of a disadvantaged group furthers substantive equality and is not discriminatory even though such programs necessarily exclude people from other groups. This is because differential treatment in the service of equality for disadvantaged groups is an expression of equality, not an exception that requires exemption. The Court explained that disadvantaged groups are identifiable by their protected characteristics, which connote “vulnerability, prejudice and negative social characterisation”.
This is an inherently fact-specific inquiry that would be left to the assessment of the Human Rights Tribunal absent some error rising to the level of patent unreasonableness.