Can an employee claim discrimination under the B.C. Human Rights Code (the “Code”) against a co-worker on a job site who is not a superior and has a different employer? This issue was recently considered by the Supreme Court of Canada in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62.
The complainant was employed by an engineering firm on a road improvement project. He supervised the work of a construction company for whom the respondent, Mr. Schrenk, worked. In the course of working on the project, Mr. Schrenk made derogatory remarks at the construction site about the complainant’s place of origin, religion and sexual orientation, and also sent him derogatory emails. This led to Mr. Schrenk being terminated. The complainant also brought a human rights complaint against Mr. Schrenk and his employer, as well as the complainant’s own employer, alleging discrimination regarding employment. Mr. Schrenk and his employer sought to dismiss the complaint, arguing the B.C. Human Rights Tribunal did not have jurisdiction as there was no employment or supervisory relationship by Mr. Schrenk or his employer over the complainant.
This argument was rejected by the Tribunal and the B.C. Supreme Court, and the complaint was allowed to proceed. On further appeal, the B.C. Court of Appeal disagreed. It held that the Tribunal’s jurisdiction was limited to complaints against those with the power to inflict discriminatory misconduct as a condition of employment, and no such supervisory or employment relationship existed between the complainant and Mr. Schrenk. In the final word, the majority of the Supreme Court of Canada disagreed with the B.C. Court of Appeal, and concluded that the complaint should proceed.
Supreme Court of Canada Decision
In reaching its decision, the Supreme Court of Canada (“SCC”) concluded that discrimination “regarding employment”, as stated in the Code, should be broadly interpreted such that it prohibits any discrimination that has a sufficient nexus with the employment relationship. Where that nexus is established, this would capture discrimination by co-workers, even when the co-worker has a different employer.
In considering the required nexus, the Supreme Court of Canada stated that the Tribunal must consider all relevant factors, including the following: 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. On the facts of this case, the SCC found that as a foreman on the worksite, Mr. Schrenk was an integral and unavoidable part of the complainant’s work environment, and that his conduct had a detrimental impact on the workplace because it forced the complainant to deal with “repeated affronts to his dignity.” As the nexus was established, the SCC allowed the complaint to proceed.
The effect of the Schrenk decision is that employers now may face liability under the Code, or under similarly drafted human rights statutes in other provinces, for the discriminatory workplace conduct of their employees toward persons they do not employ. Employers, particularly those with shared worksites, must be vigilant in preventing harassment, and ensuring their policies clearly prohibit discriminatory conduct by their employees against anyone, while performing their duties.