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Follow us on TwitterThe Supreme Court of Canada has recently released a decision regarding workplace discrimination that has important implications for employers and employees alike. In British Columbia Human Rights Tribunal v. Schrenk, the 6‑3 majority of the court ruled that a co‑worker can be held liable under BC’s Human Rights Code for workplace discrimination against another co‑worker. While this case was about the jurisdiction of the BC Human Rights Tribunal and interpretation of BC’s Human Rights Code, it sends a message to other provincial tribunals about how to approach discrimination in the employment context differently – and leaves many questions for employers.
Background
The human rights applicant, Mohammadreza Sheikzadeh-Mashgoul, worked as a civil engineer for a company on a road improvement project. The company, Omega, supervised a construction contractor named Clemas on the project. Clemas employed a site foreman and superintendent, Edward Schrenk, who was supervised by the applicant, Sheikzadeh-Mashgoul. Sheikzadeh-Mashgoul told Omega that Schrenk made aggressive racist and homophobic statements to him on the worksite on a number of occasions. Omega asked Clemas to remove Schrenk from the worksite. Clemas did, but Schrenk continued to work on the project for another year before he was fired, and, while no longer at the worksite, continued to harass Sheikzadeh-Mashgoul by email. Sheikzadeh-Mashgoul filed a complaint with the BC Human Rights Tribunal in 2014 saying that he was discriminated against on the basis of religion, place of origin, and sexual orientation – but he filed the application against Schrenk and Clemas, not his employer. Schrenk and Clemas both applied to dismiss the claim, arguing that the Tribunal had no jurisdiction to deal with the complaint because they were not the applicant’s employer or supervisor. The Tribunal decided it could hear both complaints, and Schrenk appealed all the way up to the Supreme Court of Canada. The Supreme Court found the Tribunal was right that it had jurisdiction to hear the complaint and re‑instituted the original decision to go ahead with the hearing. Now, the original complaint by Sheikzadeh-Mashgoul will be heard by the BC Human Rights Tribunal.
Judgment
This is a somewhat contentious judgment because three judges, including the outgoing Chief Justice McLachlin, did not agree that BC’s Human Rights Code applied in situations outside the employer‑employee relationship and wrote a dissenting judgment. The majority decision, written by Justice Rowe, held that BC’s Human Rights Code is not limited to protecting employees solely from discriminatory behaviour by their employers in the workplace, but applies to discrimination when it occurs in their employment context – including by co‑workers, even when those co‑workers have a different employer.
To determine whether discriminatory conduct has a sufficient connection with the employment context, the majority of judges said that human rights tribunals can consider three contextual factors:
- whether the person doing the harassing was integral to the complainant’s workplace,
- whether this conduct occurred in the workplace, and
- whether the claimant’s work performance or work environment was negatively affected.
The majority noted that these factors are not exhaustive and their relative importance will depend on the circumstances.
Justice Abella also wrote her own reasons agreeing with the conclusion of the majority but focused on the principles underlying human rights legislation with respect to employment. She emphasized that employees are not solely protected from discrimination by people who occupy a position of authority, but from any discrimination related to or associated with their employment – so people who are in a position of authority are also protected against discrimination by employees or co‑workers in lower ranks. She wrote that this approach is responsive to modern workplaces, which may consist of diverse organizational structures, and that this recognizes that preventing employment discrimination is a shared responsibility among those who share a workplace.
The dissenting opinion, written by the recently‑retired Chief Justice McLachlin, said that the BC Human Rights Code reflects the view that the Legislature was concerned with power imbalances by those in a position of power over more vulnerable people and for this reason, the Code’s protections are limited to the direct employer‑employee relationship.
In response to this concern, the majority argued that the encounters private individuals may have in day‑to‑day life, such as harassment on the street, are different from those in the employment context because employees are stuck in their role at work. Justice Rowe stated that employee vulnerability does not only arise from a subordinate economic relationship with employers, but because employees are a captive audience to perpetrators of discrimination – including a harassing co‑worker – on the basis of identity hierarchies like gender and race. He provided the following example:
Whether a server is harassed by the restaurant owner or the bar manager, by a co-worker, or by a regular and valued patron, the server is nonetheless being harassed in a situation from which there is no escape by simply walking further along the street.
He further said that discrimination in employment should be approached “as a context requiring remedy against the exploitation of vulnerability rather than as a relationship needing unilateral protection”.
Implications
The judgment addresses a problem that may often come up in the employment context (at paragraph 57):
Consider an employee who endures years of discriminatory harassment at the hands of a co-worker who commits that harassment covertly, such that the employer is unaware of it despite exercising diligent supervision. Under the narrow approach, this may not be discrimination “regarding employment” as the employer is unaware of the discrimination and thus may not be faulted for not intervening. A perverse consequence flows from this: as long the employer acted with reasonable diligence, the Tribunal may find that the complainant never suffered discrimination “regarding employment” for the period leading up the moment when he or she finally musters the courage to report the years of abuse by their co-worker.
The decision is timely given its release in the wake of the sexual assault allegations against celebrities and politicians and the #MeToo movement. As the Schrenk case shows, this can also happen when the subject of harassment is in a position of authority. In these situations, an employer has few remedies – discipline or termination of employment – while a tribunal can order the harasser to cease the behaviour, compensate the complainant, or declare the conduct discriminatory, which can be symbolically significant. Providing a remedy directly against a harasser in the workplace gives the aggrieved person a remedy against the harassment itself – though a claim would still need to be made within the applicable limitation period.
Ontario’s Human Rights Code (the Code) explicitly protects employees from harassment in the workplace by either an employer, agent of the employer, or another employee, under Section 5(2). Ontario case law interprets this as creating an obligation for employers to create discrimination‑free environments in the workplace. But the majority decision in Schrenk went further – it granted protections in a broader employment context, for example, in a situation of discrimination against a person by someone sharing a working space who is not employed by the same employer.
Notably, the Supreme Court majority emphasized that the employer still has primary responsibility for ensuring a discrimination‑free workplace and that making claims against co‑workers does not stop a complainant from making a claim against the employer too. Consequently, the decision does not lower the standard that employers must take to prevent discrimination in the workplace.
But the Schrenk case has further implications for employers. What constitutes all possible steps to stop discrimination before an employee files a human rights application against an employer and a harassing co‑worker? If an employee files a human rights application before the employer can terminate the co‑worker, what are the employer’s employment‑related obligations towards both the harasser and the complainant? Can an employer claim costs against the harasser? The timing of an employee’s decision to file an application may become a more important factor, in addition to the employer’s actions, in answering these questions. We won’t know the answers to these and other questions for some time. We’ll keep you informed of any new developments.
