A recent decision from the Supreme Court of Canada, British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (“Schrenk”), confirms that the meaning of discrimination “regarding employment” in the Human Rights Code, R.S.B.C. 1996, c. 210 includes discrimination perpetrated by any person, including another individual who is not employed by the same employer but who shares a workplace with the complainant, as long as the conduct is sufficiently related to the employment context and the behavior has a detrimental impact on the workplace.
In Schrenk, S-M filed a complaint in the British Columbia Human Rights Tribunal against another individual: S. S-M was a civil engineer employed by Omega and Associates Engineering Ltd. (“Omega”). S was a site foreman and superintendent employed by Clemas Construction Ltd. (“Clemas”). Omega was involved in a road improvement project and Clemas was the primary construction contractor on the project. While working together on the project, S-M alleged that S discriminated against him based on religion, place of origin and sexual orientation.
The Human Rights Tribunal and BC Court of Appeal
At the Tribunal stage, S unsuccessfully applied to dismiss the complaint. S argued that s. 13(1)(b) of the Code did not apply since S-M was not in employment relationship with S, accordingly the Tribunal did not have the jurisdiction to hear the complaint. Section 13(1)(b) of the Code reads, in part, that “[a] person must not discriminate against a person regarding employment or any term or condition of employment” because of various enumerated grounds of discrimination such as race, colour, ancestry, religion, martial status, etc. S ultimately, and successfully, appealed the decision to the British Columbia Court of Appeal. The BCHRT appealed the BCCA decision to the Supreme Court of Canada.
The Supreme Court of Canada
The Supreme Court of Canada held that the Tribunal did have the jurisdiction to hear the complaint. The intent of the Code is to protect all employees from discrimination in the workplace. This includes protection from co-workers who have a different employer, or employers who do not have economic or hierarchical authority over the complainant. Employees are vulnerable not only because they are economically subordinate to their employers, but also because they are a captive audience to other perpetrators of discrimination, such as harassing co-workers.
The words “regarding employment” in section 13(1)(b) of the Code should be interpreted broadly to include any discrimination that targets an employee and that is related to the employment context in some way. To help the Tribunal determine whether discriminatory conduct has a sufficient nexus with the employment context in each individual case, the Court proposed a non-exhaustive list of factors that may inform the Tribunal’s analysis, as follows:
1. whether the respondent was integral to the claimant’s workplace;
2. whether the impugned conduct occurred in the claimant’s workplace; and
3. whether the claimant’s work performance or work environment was negatively affected.
Schrenk is a good reminder to employers to ensure their work environment is free from harassment and discrimination. Even if the individual is not their employee, employers are required to take steps to protect their workers from harassment and discrimination perpetrated in the workplace. Employees are also reminded that they themselves may be held liable for harassing and discriminatory conduct against other co-workers.
Please see the Court of Appeal decision here:
Please see the Supreme Court of Canada decision here: