British Columbia’s (B.C.’s) privacy legislation has typically meant that employers have avoided or limited the collection of demographic data from applicants and employees. However, the province’s recent introduction of the Anti-Racism Data Act signals that change is coming, specifically at the intersection between privacy and human rights law. Employers in British Columbia will want to monitor this evolving approach to privacy and data management.
The first of its kind in Canada, the Anti-Racism Data Act provides the province with limited rights to collect, use and disclose disaggregated demographic data. Disaggregated demographic data means sub-categories of demographic information, such as racial identity, gender, occupation and education. The province’s working theory is that this kind of data may be used to identify, and in turn, eliminate, systemic racism.
This legislation follows a report released by the B.C. Human Rights Commissioner in 2020 that recommends the collection, storage, use and disclosure of disaggregated demographic data in a culturally safe manner. The report is grounded in the “grandmother perspective,” where data collection is to be used as a “tool of care,” rather than a “tool of control.” Put otherwise, it encourages the use of data to support, rather than monitor, communities.
Following this report, and a community-led engagement project, the province introduced the Anti-Racism Data Act on May 2. The act moved quickly through the legislature, passing third reading on May 9. The act comes into force on Royal Assent. Below, we have provided an overview of the new legislation, and summarized key takeaways for employers.
Collection, Use and Disclosure of Anti-Racism Data
Who? Only a “public body” may collect, use and disclose data under the Anti-Racism Data Act.
The definition of a “public body” under the Anti-Racism Data Act is more limited than under the Freedom of Information and Protection of Privacy Act (FIPPA). It includes provincial government ministries, but it specifically excludes public bodies referred to in Schedule 2 of FIPPA and “local public bodies” such as local governments, health care authorities, social services bodies, educational bodies and professional regulators. It does not apply to any private organizations.
What? Under the Anti-Racism Data Act, “personal information,” as defined by FIPPA, may be collected, used or disclosed to another public body or an Indigenous governing entity.
However, this may only occur for the limited purposes of ”identifying and eliminating systemic racism and advancing racial equity.” These terms are not legislatively defined, and therefore, the scope of these rights remain uncertain. Employers should stay tuned to the relevant legal developments.
How? The Anti-Racism Data Act establishes several procedural safeguards regarding the collection, use and disclosure of the disaggregated demographic data.
An individual’s disclosure of their personal information is voluntary, and a benefit or service may not be withheld, altered or limited if an individual declines to provide the requested information (unless the information is required to determine someone’s eligibility for the benefit or service).
Furthermore, an individual must be specifically informed of these rights, barring an exception that arises when the public body is not collecting personal information directly from an individual. In that case, the public body must still publish an informational notice.
The manner in which data will be collected, used, and disclosed under the Anti-Racism Data Act is not yet known. Important data directives and data standards will likely be issued after the act comes into force.
However, the Anti-Racism Data Act is not intended to provide the province with unlimited rights to sensitive personal information. For example, the province will be required to conduct engagements and consultations with various affected stakeholders prior to issuing data standards and directives.
Furthermore, the Anti-Racism Data Act requires that the director, assisted by a newly established committee, identify research priorities every second year to guide the purpose of the data collection under the act.
Key Takeaways for Employers
The Anti-Racism Data Act contemplates collection of sensitive personal information and limited rights of use and disclosure as a tool to inform law and policy in order to achieve substantive equality.
However, the Anti-Racism Data Act does not provide private employers, and many public bodies, with rights concerning the collection, use and disclosure of disaggregated demographic data, even if it is for purposes related to anti-racism.
We recommend that employer-led data collection initiatives in the workplace be voluntary for applicants and employees. Employers should continue to manage such initiatives with caution, taking privacy and human rights obligations into account.
However, this legislation is a substantive shift in approach to privacy and data management. In the long term, the Anti-Discrimination Data Act may also increase the availability of quantitative evidence that is brought before adjudicators in human rights disputes.
Keri L. Bennett is an attorney with Roper Greyell LLP in Vancouver. © 2022 Roper Greyell LLP. All rights reserved. Reposted with permission of Lexology.