Workplace discrimination under section 13(1) of the BC Human Rights Code need not be conducted by an employer or a person in a position of authority to the complainant. The Supreme Court of Canada interprets it with a broad stroke.
In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the Supreme Court of Canada considered the scope of section 13(1) of BC’s Human Rights Code, which concerns discrimination “regarding employment or any term or condition of employment.” The Supreme Court held that this provision is not only limited to protecting employees from discrimination perpetrated by their employer or superiors. Rather, applying a broad and liberal interpretation to the section, the Supreme Court held that section 13(1) of the Code prohibits discriminatory conduct that targets employees, regardless of the source, so long as the conduct has a sufficient nexus to the employment context.
The Complainant, Mr. Sheikhzadeh-Mashgoul, worked for an engineering firm hired by the municipality of Delta to oversee a road improvement project. The Complainant was an Iranian-born Muslim. Part of the Complainant’s role involved supervising work done by Clemas Contracting Ltd., the primary construction contractor. An employee of Clemas, Mr. Schrenk, repeatedly made racist and homophobic comments towards the Complainant. The Complainant filed a complaint with the BC Human Rights Tribunal alleging that against Mr. Schrenk, Clemas, and others discriminated against him relating to his employment on the basis of his religion, place of origin, and sexual orientation contrary to section 13 of the Code. This section provides that a person must not discriminate against another person “regarding employment” on the basis of several protected grounds, including religion, place of origin, and sexual orientation.
Mr. Schrenk applied to have the complaint dismissed on the basis that section 13(1) of the Code did not apply because the Complainant was not in an employment relationship with Mr. Schrenk or Clemas and, thus, the Tribunal did not have jurisdiction to consider the Complaint as against Mr. Schrenk.
Ultimately, the question before the Supreme Court of Canada was: Is section 13(1) of the Code only limited to protecting employees from discriminatory harassment by their employer or superiors in the workplace?
The majority of the Supreme Court of Canada concluded that section 13(1) of the Code is not limited to protecting employees from discrimination that is perpetrated by their employers. Instead, it applies to all circumstances that have a sufficient nexus to the complainant’s employment context. To determine whether conduct falls under this prohibition, courts must engage in a contextual analysis that considers all relevant circumstances. The Court provided a non-exhaustive list of factors that may inform this analysis:
- whether the respondent was integral to the complainant’s workplace;
- whether the impugned conduct occurred in the complainant’s workplace; and
- whether the complainant’s work performance or work environment was negatively affected.
In this case, Mr. Schrenk’s discriminatory conduct had a sufficient nexus to the Complainant’s employment context. Mr. Schrenk was an “integral” and “unavoidable” part of the Complainant’s work environment, the comments occurred in the workplace, and the Complainant’s work environment was negatively affected due to the repeated affronts to his dignity.
In light of the decision in Schrenk, in order for discriminatory conduct to be captured by section 13(1) of the Code, the source of the conduct need not be an employer or a person in a position of authority to the complainant; rather, such conduct may be perpetrated by a coworker, a subordinate, a contractor, or an individual employed by another company. The implication of this ruling is significant for employers, as it represents a potentially significant expansion to the scope of employer liability for discriminatory conduct in the workplace.
By Donovan Plomp
* This blog was written with the assistance of Sarah Blanco, Articling Student.