If it walks and quacks Like a duck… - When are unwelcome derogatory comments made in workplace about race, religion and sexual orientation not discrimination?

Employers would not be faulted for assuming that derogatory remarks made in the workplace by one person to another about that person’s place of birth, religion, sexual orientation is discrimination under the Human Rights Code.  The B.C. Court of Appeal has recently clarified that this is not always the case.

This decision (Schrenk v. BC Human Rights Tribunal and Mashgoul) involved two employees who worked for two different employers at the same worksite.  Schrenk was employed by a contracting company onsite (Clemas) and was the site foreman.  Mashgoul was a civil engineer working for the consulting engineering company and was the site administrator on the project.  Mashgoul supervised the work done by Clemas.

While on the worksite, Schrenk made derogatory statements to Mashgoul and others about Mashgoul’s place of birth, religion and sexual orientation.  He also sent derogatory e-mails to Mashgoul.  Mashgoul complained to Clemas and Schrenk’s employment was terminated.  There was no dispute that the offensive conduct occurred.

Mashgoul brought a human rights complaint against Schrenk and Clemas.  Schrenk and Clemas argued that they had not discriminated against Mashgoul under the Code and applied to have the complaint dismissed on the basis that they did not employ Mashgoul.  The Tribunal refused to dismiss the complaint, ruling that the purpose of the Code is to address discrimination in the workplace and that it would be unduly artificial and inconsistent with public policy to dismiss the complaint simply because Mashgoul was not employed by Clemas.

Schrenk appealed.

In addressing the appeal, the Court of Appeal noted that the Human Rights Code prohibits a “person” from discriminating against an “employee”.  Schrenk was clearly a person and Mashgoul was an employee. 

However, the Code prohibits discrimination “against a person regarding employment or any term of employment”.  While Schrenk’s conduct was clearly objectionable harassment, the conduct did not have sufficient nexus with Mashgoul’s employment to be discrimination under the Code.  The Court held that not all insults will be discrimination regarding employment – they can amount to discrimination if the wrongdoer is clothed with authority from the employer to impose the unwelcome conduct on the employee.  Neither Schrenk nor Clemas were in a position to impose Schrenk’s conduct on Mashgoul as a term or condition of his employment.  The appeal was allowed.

It is important to note that Mashgoul had not filed a complaint against his employer alleging that it had failed to provide him a discrimination free workplace.  Instead, he only filed his complaint against Schrenk and Clemas.  

Employers have a duty to ensure that  employees are not discriminated against in their employment and have an obligation under the Workers’ Compensation Act to maintain a harassment free workplace.  Many employers recognize the harm that discriminatory and harassing behaviour can cause in a workplace and the risk of constructive dismissal it creates and have broad policies addressing harassment in the workplace.  We suspect that most employers would take steps to address offensive conduct in the workplace if it comes from third parties such as clients, customers, contractors, regulators, the public.

However, this decision has potential implications for the current thinking about when an employer will be liable under the Human Rights Code for the conduct of co-workers, customers, clients, patients, residents, partners, contractors, the public, etc.  We have been told that the Tribunal is appealing this decision to the Supreme Court of Canada.