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Supreme Court of Canada confirms that all workplace harassment is protected – even by third parties

All workplace harassment is protected according to the Supreme Court of Canada in a recent case in British Columbia.

All workplace harassment is protectedIn British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the Supreme Court of Canada confirmed that human rights legislation is to be interpreted broadly and purposively and specifically found that the protection against workplace harassment is not limited to conduct perpetrated by an individual’s employer or co-worker. This decision will have significant implications for employers and employees alike.

Facts

Mohammadreza Sheikhzadeh-Mashgoul, who was working as a supervising engineer for Omega and Associates Engineering Ltd. (“Omega”) on a road project in Delta, British Columbia, was repeatedly harassed by Edward Schrenk, who was working on the same project but was employed by a different company, Clemas Construction Ltd. (“Clemas”), the primary construction contractor on the project. In particular, Mr. Schrenk made derogatory comments about his race, religion and sexual orientation to him as well as to others.

These two individuals were not in a formal employment relationship or a supervisory relationship with one another. However, they did work closely together with Mr. Schrenk as the foreman for the project and Mr. Sheikhzadeh-Mashgoul as Omega’s site representative. Although Omega and Clemas were two separate companies, Omega had certain supervisory powers over employees of Clemas.

Mr. Sheikhzadeh-Mashgoul alleged that while they were working together on the construction site, Mr. Schrenk made racist and homophobic comments towards him, including the following:

  • “You’re not going to blow us up with a suicide bomb are you?”
  • During an argument, he pushed him and yelled, “Get the f***out of my site, I’m the superintendent you f***Muslim piece of shit”. When Mr. Sheikhzadeh-Mashgoul called the supervisor, Mr. Schrenk said “Are you going to call your gay friend?” and that he was “such a girl, keeps bitching and sending emails all day long”.

Mr. Sheikhzadeh-Mashgoul alerted his employer, and they in turn asked Clemas to remove Mr. Schrenk from the work site. Although he was removed from the work site, he continued to work on the project and harass Mr. Sheikhzadeh-Mashgoul. Mr. Sheikhzadeh-Mashgoul asked that Mr. Schrenk immediately be removed from the project, and he was, but the harassment still continued. For example, he emailed Mr. Sheikhzadeh-Mashgoul suggesting that he was in a homosexual relationship with a contractor at the work site. Clemas eventually terminated Mr. Schrenk’s employment.

Judicial history

Mr. Sheikhzadeh-Mashgoul filed a complaint with the British Columbia Human Rights Tribunal (“Tribunal”) alleging discrimination with respect to employment by Mr. Schrenk. He also alleged that Mr. Schrenk’s employer and the owner of the project permitted or tolerated such conduct.

Mr. Schrenk and his employer brought an application to dismiss the complaint on the basis that it was outside of the Tribunal’s jurisdiction. They argued that section 13 of the British Columbia Human Rights Code (the “BC Code”) was not applicable since Mr. Schrenk was not in an employment relationship with Mr. Sheikhzadeh-Mashgoul. Section 13 of the BC Code states that:

13(1) A person must not

(a) Refuse to employ or refuse to continue to employ a person, or

(b) Discriminate against a person regarding employment or any term of condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. [Emphasis added]

The Tribunal rejected the application to dismiss and the BC Supreme Court dismissed Mr. Schrenk’s petition for judicial review.

However, the British Columbia Court of Appeal (the “BCCA”) saw the matter differently, finding that the Tribunal had acted outside of its jurisdiction, which it held was limited to addressing complaints against individuals who had the power to inflict discriminatory conduct as a condition of employment. Further, not all insults made in the workplace amounted to “discrimination regarding employment”.

In 2017, the Supreme Court of Canada overturned the BCCA’s decision, restoring the original ruling in favour of Mr. Sheikhzadeh-Mashgoul.

Analysis

The Supreme Court of Canada (the “Court”) applied the BC Code in a broad, purposive manner, finding that it applies to conduct so long as there is a sufficient nexus to the employment context. Hence, employees can allege workplace discrimination not only against those with whom they are in an employment relationship, but also against third parties.

The legal test to determine whether such a nexus exists involves a contextual analysis of the following three non-exhaustive factors:

  1. whether the respondent was integral to the complainant’s workplace;
  2. whether the impugned conduct occurred in the complainant’s workplace; and
  3. whether the complainant’s work performance or work environment was negatively affected.

Applying the contextual approach in this case, the Court found that this test was met: section 13 of the BC Code applied since Mr. Schrenk, “[a]s the foreman of the worksite…was an integral and unavoidable part of [Mr. Sheikhzadeh-Mashgoul’s] work environment” and since he engaged in “discriminatory behaviour [that] had a detrimental impact on the workplace”. Thus, the BC Code protected Mr. Sheikhzadeh-Mashgoul from discrimination by Mr. Schrenk – although Mr. Schrenk did not occupy a position of authority over him, and was not in an employment relationship with him, Mr. Schrenk’s discriminatory conduct was related to or associated with his employment.

Takeaway

The bottom line is that we now have a pronouncement from the Supreme Court of Canada that employees can allege workplace discrimination not only against those with whom they are in an employment relationship, but also against third parties as long as the discriminatory conduct has a sufficient nexus to the employment context. While the Supreme Court of Canada interpreted the BC Code in this case, this broad contextual approach will be applied in a similar manner to human rights legislation in other jurisdictions.

This decision expands the human rights protections available in the workplace. Employees should be comforted by the knowledge that they are entitled to protection even when their harasser is not technically a co-worker or employer. Employers should be mindful of the fact that they can be liable for harassment of third parties in the right circumstances.

In light of this decision, employers should consider revising their workplace harassment, violence and anti-discrimination policies and procedures to ensure they are compliant with their legal obligations and to minimize the risk of liability.

By Nadia Zaman and Stuart Rudner

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Stuart Rudner, Rudner Law

Employment Lawyer and Mediator at Rudner Law
Stuart Rudner is a leading HR Lawyer, mediator and a founding partner of Rudner Law, a firm specializing in Canadian Employment Law. At Rudner Law, their approach is simple. They want to understand your circumstances, your concerns, and your goals. They will then ensure that you understand the legal regime along with your rights and obligations. Once that is done, they work with you to design a cost-effective strategy that meets your needs. They want to be your trusted advisor.Read more
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