The Scope of Human Rights in the Modern Workplace
At a time when the #metoo movement continues to galvanize, the Supreme Court of Canada has issued a landmark decision in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 that expands protection from discrimination in the workplace so that it now can potentially include within its scope harassment perpetrated by co-workers, even if they have different employers.
The complainant in this case was an Iranian-born Muslim man and civil engineer who was employed by a consulting firm. He worked with Mr. Schrenk who was the site foreman on the construction project and who worked for a different employer. The complainant filed a human rights complaint against Mr. Schrenk that alleged discrimination based on religion, place of origin, and sexual orientation. The alleged conduct included statements that were clearly derogatory and related to these grounds.
In addressing the issue of jurisdiction in Sheikhzadeh-Mashgoul v. Clemas Contracting and another, 2015 BCHRT 17, the Tribunal stated it had jurisdiction to hear the complaint and held that it would be unduly artificial and not in keeping with the purposes of the Human Rights Code to exclude employees on a shared worksite from its protections simply because the alleged perpetrator of discriminatory behaviour worked for another employer at the worksite. The decision was upheld on judicial review by the BCSC.
Nonetheless, the BCCA disagreed with the Tribunal in Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146, and found the Tribunal lacked jurisdiction to address the complaint. The Court stated that the Code only seeks to address those instances where persons are forced by others who occupy positions of power to suffer insult or abuse as a term or condition of employment. The proper question according to the BCCA was whether the site foreman stood in such a relationship to discriminate against the complainant with respect to employment. The decision about whether or not the Tribunal had jurisdiction to hear the complaint turned then on the finding that Mr. Schrenk was not in such a relationship.
The issue before the Supreme Court of Canada was not whether Mr. Schrenk’s conduct could amount to discrimination but whether such discrimination was “regarding employment” in light of the fact that Mr. Schrenk was neither the Complainant’s employer nor his superior in the workplace. The majority concluded that the Code is not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace; “its protection extends to all employees who suffer discrimination with a sufficient connection to their employment context.” The Court expressly found that this could include discrimination by co-workers, including those who have different employers.
The contextual approach proposed by the Court is consistent with the remedial purposes of human rights legislation and provides employees with greater scope to obtain remedies. Accordingly, the Court 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 of this, in addition to bringing a complaint against their employer, a complainant can now bring a complaint against an individual perpetrator of discrimination. This is “especially relevant when the discriminatory conduct of a co-worker persists despite the employer having taken all possible steps to stop it.”
Applying the contextual approach to the case, as the foreman of the shared worksite Mr. Schrenk was an integral and unavoidable part of the complainant’s work environment and his discriminatory behaviour had a detrimental impact on the workplace because it forced the complainant to contend with repeated affronts to his dignity. The Tribunal will therefore be able to proceed with hearing the complaint.
Lessons for Employers
While Schrenk is expressly about the conduct of an individual perpetrator, it may not be a stretch to find that the employer of a perpetrator could also be vicariously liable for conduct. Moreover, the contextual approach will also support claims arising from conduct that originates with anyone in a place of employment: owners, managers, contractors, co-workers, clients and patrons. While this may seem to be a very broad reframing of discrimination in employment, a properly named respondent should still be someone who is an integral and unavoidable part of the complaint’s environment.
This case opens the door widely in respect of potential claims of discrimination regarding employment and reflects the realities of modern workplaces. With the #metoo movement continuing to galvanize beyond celebrity driven headlines, HR professionals should carefully consider the following tips:
- Be prudent in addressing any claim that comes to your attention that relates to your own employees and the workplace whether your employee is a complainant with allegations or a potential respondent and regardless of the identity of the others involved.
- When defending against such claims formally, it may be more prudent than ever to have separate representation from alleged perpetrators.
- Update your training to include examples arising from shared worksites.