Canada: Can Workplace Human Rights Discrimination Be Perpetrated By Someone Other Than Complainant's Employer?

Last Updated: April 24 2018
Article by Andrew Carricato

Landmark Human Rights Decision: Discrimination of your employee by an individual that is not your employee may now be your problem

Against the current #MeToo backdrop, the Supreme Court of Canada ("SCC") issued a landmark decision on December 15, 2017 that expanded the protection of human rights at work beyond the traditional employer-employee relationship.

In the decision of British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the SCC concluded that the scope of BC's Human Rights Code ("Code") is broad enough to protect employees from harassment and discrimination perpetrated by co-workers that are employed by different employers.

Quick Summary

This case is interesting because it was about whether the BC Human Rights Tribunal ("Tribunal") had jurisdiction to hear a complaint made by an employee of one employer against the employee of another.

This decision reaffirms the importance of ensuring employees are free from discrimination not only from direct superiors and co-workers but also contractors or others who are not employees of the local government

The complainant, Mr. Sheikhzadeh-Mashgoul ("SM"), an Iranian-born Muslim man and civil engineer was employed by Omega & Associates Engineering ("Omega"). The Respondent, Mr. Schrenk, worked with SM on a construction project for the City of Delta. Schrenk was the site foreman on the project but was employed by a different employer, Clemas Contracting Ltd. ("Clemas"). SM and Schrenk were not in a formal employment relationship with each other, nor did one supervise the other.

SM alleged that between September 2013 and January 2014, while on the construction site, Schrenk made disparaging comments to SM about his place of origin, religion and perceived sexual orientation. When it was brought to their attention, Omega and Delta asked Clemas to remove Schrenk from the work site, which it did. Schrenk, however, continued to work on the project off-site and continued to harass SM by sending him inappropriate emails. SM complained again and Schrenk's employment was terminated shortly thereafter.

The Complaint

SM subsequently filed a complaint with the Tribunal against Schrenk and Clemas alleging they discriminated against him in the course of his employment. Both Schrenk and Clemas applied to dismiss the complaint on the basis that they were not in an employment relationship with SM, and therefore the Tribunal had no jurisdiction. The Tribunal disagreed, finding that it would be contrary to the spirit and purpose of the Code to exclude employees who shared a common worksite from its protections simply because the perpetrator of the discriminatory behaviour worked for another employer. The decision was upheld by BC's Supreme Court on judicial review. The Court of Appeal, however, overturned the decision on appeal and decided that the Tribunal did not have jurisdiction.

The Decision

Our highest Court considered whether section 13 of the Code applied to the relationship between two individuals sharing a workplace, but working for different employers. Using a contextual and holistic approach, the majority held that "s. 13(1)(b) of the Code prohibits discrimination against employees whenever that discrimination has a sufficient nexus with the employment context."

The SCC stated that "while the person in control of the complainant's employment may be primarily responsible for ensuring a discrimination-free workplace [...] it does not follow that only a person who is in a relationship of control and dependence with the complainant is responsible for achieving the aims of the Code. Rather, the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions." As a result, so long as there is a sufficient nexus between the discriminatory conduct and the circumstances of his or her employment the complainant may bring a human rights complaint against the individual perpetrator of discriminatory conduct no matter their identity. In considering whether there is a sufficient nexus, a Court will consider the following non-exhaustive factors:

1. whether the perpetrator was integral to the complainant's workplace;

2. whether the discrimination occurred in the complainant's workplace; and

3. whether the complainant's work performance or work environment was negatively affected.

What This Means for Employers

This decision is a reflection of the realities of modern workplaces which are not always clearly defined. The SCC has broadened the scope of human rights complaints that employees can make with respect to workplace discrimination and harassment under the Code and has reaffirmed that the Code must be read liberally, broadly and consistent with its remedial purpose. This more expansive interpretation means that a complainant with whom you may have no employment relationship may name the municipality in an employment related complaint so long as there is a sufficient connection to his or her employment.

While the decision does not expressly say so, it also raises the question of whether employees of the municipality can bring complaints of discrimination and harassment against third-parties, such as members of the public, if they are subjected to discriminatory or harassing behaviour in carrying out their duties.

In sum, this decision reaffirms the importance of ensuring that employees are free from discrimination not only from their direct superiors and co-workers but also contractors or others who are not employees of the municipality, such as members of the public or third-parties they may work with, in the context of their employment.

It also serves as an important reminder to all municipalities to ensure they have proper policies and procedures for dealing with incidents and complaints of workplace discrimination and harassment. Existing policies and procedures should also be expanded, if not already, to include the prohibition of any inappropriate conduct between employees, elected officials and anyone who comes in contact with them, such as members of the public, in the carrying out of their employment.

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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