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
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.
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 dismissed.
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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