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Global | Publication | December 2017
In a landmark case, the Supreme Court of Canada (SCC) has extended the protection it offers to employees from discrimination in the workplace to encompass discrimination perpetrated by individuals who have a different employer: British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62 (Schrenk).
This case answers in the affirmative the question of whether the BC Human Rights Code (Code) applies to discrimination perpetrated by someone other than the complainant’s employer or superior. The decision will have significant implications for employers and all those involved in the workplace.
The caseinvolved two individuals who worked for two different employers at the same worksite. Mr. Schrenk was employed by a contracting company (Clemas) as the site foreman. Mr. Sheikhzadeh-Mashgoul was a civil engineer working for another consulting company and was the site administrator in charge of supervising the work done by Clemas. Mr. Schrenk repeatedly made highly derogatory statements to Sheikhzadeh-Mashgoul and others about Mr. Sheikhzadeh-Mashgoul’s sexual orientation, religion, and place of birth. Mr. Sheikhzadeh-Mashgoul subsequently filed a complaint of discrimination with the British Columbia Human Rights Tribunal, alleging that Clemas and Schrenk had discriminated against him under section 13 of the Code.
Clemas and Mr. Schrenk filed an application to dismiss the complaint, arguing that the Tribunal lacked jurisdiction over the matter as there was no relationship of employment between Mr. Sheikhzadeh-Mashgoul and Clemas/Mr. Schrenk. Mr. Schrenk was neither Mr. Sheikhzadeh-Mashgoul’s employer nor his superior in the workplace. The Tribunal rejected the application to dismiss. Mr. Schrenk’s petition for judicial review was dismissed by the BC Supreme Court. Mr. Schrenk was successful in his appeal to the British Columbia Court of Appeal (BCCA), however, which held that the Tribunal’s jurisdiction was limited to addressing complaints against those who had the power to inflict discriminatory conduct as a condition of employment. Since Mr. Schrenk was not in a position to force Mr. Sheikhzadeh-Mashgoul to endure the discriminatory conduct as a condition of the latter’s employment, the BCCA held that the Tribunal did not have jurisdiction over the complaint.
The majority of the SCC broadly applied the protections under the Code, saying they are not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace. Rather, the majority held that section 13(1)(b) of the Code is directed at addressing conduct that targets employees so long as such conduct has a sufficient nexus to the employment context. It does not require that the perpetrator of the discrimination be someone within the employment relationship. Therefore, other workplace relationships—for example, co-workers or non-employers exercising power over employees—could be sources of discrimination regarding employment so long as the discriminatory conduct has a sufficient nexus to the employment context.
In determining whether such a nexus exists in the totality of all relevant circumstances, the majority enumerated three non-exhaustive factors that inform this contextual analysis: (1) whether the respondent was integral to the complainant’s workplace; (2) whether the impugned conduct occurred in the complainant’s workplace; and (3) whether the complainant’s work performance or work environment was negatively affected. Applying this contextual approach to the circumstances before it, the majority found that Mr. Schrenk’s conduct did fall within the ambit of section 13(1)(b) since, given his position as site foreman, he was an integral and unavoidable part of Mr. Sheikhzadeh-Mashgoul’s work environment. This broad contextual approach could be applied in various ways to similarly expand the application of other provincial human rights laws across the country.
Schrenk is an affirmation from the highest court in our country of the application of section 13 of the Codebeyond employers and supervisors,to non-direct employment relationships in which employees may be a “captive audience” subject to discriminatory behaviour. In determining what is “regarding employment” for the purposes of a complaint, the question of whether the discriminatory acts were perpetrated by those in a hierarchical position of power over more vulnerable individuals is not the determinative factor.
This broad approach to what is “regarding employment” is liable to pose challenges for employers. The majority decision effectively expands the scope of who may be responsible for ensuring that workplaces are free from discrimination. Shared worksites can pose particular complications where the harassed employee’s employer may not have a direct ability to remedy the discrimination. In such circumstances, all employers and contractors involved may need to cooperate in their efforts to provide a discrimination-free workplace.
In addition, this decision also creates an increased prospect of personal liability on a worksite, including for contractors. What may have been previously viewed as a private act of discrimination between individuals, and therefore not subject to the Code, could now be caught by statutory protections regarding employment.
The resulting expanded application of workplace protections by the SCC could result in an influx of complaints under section 13 of the Code against both employers and non-employer entities and other individuals in the employment context.
Although, in this case, Mr. Sheikhzadeh-Mashgouldid not file a human rights complaint against his employer, employers have an obligation not only to ensure that their employees are not discriminated against in their employment, but also to maintain a harassment-free working environment for their employees under the BC Workers’ Compensation Act. Given the SCC’s affirmation of a broad interpretation of section 13(1)(b) of the Code and the potential application of this contextual approach to human rights law across the country, employers should revise their bullying, harassment, and anti-discrimination training programs, policies, and procedures to take into account a wider range of relationships in the employment context.
Overall, discriminatory behaviour in the workplace may be governed by the employment provisions of the Code, regardless of the identity of the perpetrator.
Nina Varumo is a freelance portrait and documentary photographer based in Stockholm. A recent project of hers Kvinnor till sjöss (‘Women at sea’) is on ongoing photo series highlighting the working life of female seafarers in order to change the stereotypical image of what and who is a seafarer.
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