As stories of workplace harassment and discrimination permeate the news and social media accounts, the Supreme Court of Canada (“SCC”) has expanded the scope of provincial human rights legislation to impose liability on co-workers – even when those co-workers have different employers. In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (“Schrenk”), the majority of the SCC advocated for a broad contextual approach to determining whether discriminatory conduct is subject to penalties under British Columbia’s Human Rights Code (the “Code”). The Schrenk decision illustrates a growing legal and social awareness of the seriousness of workplace discrimination and a desire to eliminate any sense of impunity for perpetrators. For employers, the decision heralds a new stage in the movement against workplace discrimination, in which employers may be expected to work together to address potential human rights violations.
In the Schrenk decision, the SCC has reinforced the broad reach of remedial human rights legislation. Employers must be more cautious than ever about preventing and remedying discriminatory and harassing behaviour in the workplace. In particular, employers should be mindful of situations where their employees work in close proximity with the employees of other businesses. Following Schrenk, employers may face a greater risk of liability for human rights violations, involving a wider range of potential complainants, if their employees are “integral” to the work or workplace of other individuals. Therefore, greater cooperation between employers may be required to implement effective discrimination and harassment policies.
The Applicant, Mohammadreza Sheikzadeh-Mashgoul, worked as a civil engineer for Omega and Associates Engineering Ltd. (“Omega”) on a road project commissioned by the municipal government in Delta, British Columbia (“B.C.”). As the civil engineer, the Applicant was tasked with supervising the employees of Clemas Contracting Ltd. (“Clemas”), the government’s primary construction contractor.
While on the job, the Applicant was repeatedly subjected to derogatory comments concerning religion, race, and sexual orientation. The perpetrator was Edward Schrenk (“Schrenk”), a site foreman and superintendent employed by Clemas. Following intervention by Omega and the government, Clemas removed Schrenk from the site. However, Schrenk continued to send unsolicited and discriminatory emails to the Applicant, with copies to Clemas supervisors. Clemas terminated Schrenk’s employment approximately six months after the first incident involving the Applicant.
The Applicant filed a human rights complaint with the B.C. Human Rights Tribunal (“Tribunal”), alleging discrimination by Clemas and Schrenk (the “Respondents”). The Respondents brought an application to dismiss the complaint, arguing that the Tribunal did not have jurisdiction to hear the claim because there was no employment relationship between the parties. Both the Tribunal and the Supreme Court of British Columbia concluded that Schrenk could be liable under the Code because the Applicant claimed that he was negatively impacted in his employment by Schrenk’s discriminatory conduct. The B.C. Court of Appeal sided with Schrenk and dismissed the claim because Schrenk was not in a supervisory or otherwise more powerful position in relation to the Applicant.
The majority of the SCC concluded that the Code prohibits discrimination against employees – regardless of who their employer is and who the perpetrator is – whenever that discrimination has a sufficient nexus with the employment context. The majority noted three non-exhaustive factors that could inform this contextual analysis:
- whether the respondent was integral to the claimant’s workplace;
- whether the impugned conduct occurred in the claimant’s workplace; and
- whether the claimant’s work performance or work environment was negatively affected.
Ultimately, the majority agreed with the Tribunal that Schrenk’s conduct was covered by the Code, meaning that Schrenk (and potentially Clemas) could be liable.
Three judges disagreed with the majority’s opinion and argued for a narrower interpretation of the Code, which focuses on the employment relationship instead of the employment context. While these dissenting judges’ opinion did not prevail, their perspective highlights the breadth of the majority’s contextual approach. According to the dissenting judges, although the Code’s workplace protections prohibit all forms of workplace discrimination – including discrimination from co-workers, customers or other individuals with whom an employee interacts – the onus is on employers to intervene and halt the behaviour. Therefore, the Code is only engaged by an employer’s (or supervisor’s) actions or inaction and it is the employer, rather than other perpetrators, who may be held liable. The dissenting judges were mindful of concerns about absolving perpetrators from direct responsibility or limiting recourse for victims of covert workplace discrimination, but suggested that employees advise their employer or supervisor of any discriminatory behaviour and bring a claim if the employer fails to take appropriate action.