Protection Against Workplace Discrimination Broadened

Can an employee claim workplace discrimination against an employee from another company? According to the recent Supreme Court of Canada (“SCC”) case of British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the answer, in some circumstances, is yes. In Schrenk, the SCC found that s.13(1)(b) of the British Columbia Human Rights Code (“Code”), which prohibits discriminating against someone “regarding employment”, was not limited to protecting employees from their superiors in the workplace and employers, but, rather, the protection extends to all employees who “suffer discrimination with a sufficient connection to their employment context.”

The issue in Schrenk arose when Mr. Mohammadreza Sheikhzadeh-Mashgoul allegedly experienced discriminatory comments at work and subsequent emails based on his religion, place of origin, and sexual orientation by Mr. Edward Schrenk. Mr. Sheikhzadeh-Mashgoul was a civil engineer working for Omega and Associates Engineering Ltd, who was hired to supervise a road improvement plan by the municipality of Delta in British Columbia. He was required to supervise the work of Clemas Contracting Ltd., where Mr. Schrenk was a site foreman and superintendent. After experiencing the alleged discriminatory comments and emails, Mr. Sheikhzadeh-Mashgoul filed a complaint with the British Columbia Human Rights Tribunal (“Tribunal”) against Mr. Schrenk, alleging employment discrimination based on religion, place of origin, and sexual orientation. Schrenk argued that since he was not in a position of economic authority over Mr. Sheikhzadeh-Mashgoul it was not discrimination “regarding employment” and, therefore, outside the jurisdiction of the Tribunal. The Tribunal found that Mr. Schrenk’s conduct was covered by the Code even though he was not Mr. Sheikhzadeh-Mashgoul’s superior in the workplace or employer. This decision was appealed all the way to the SCC.

The question dealt with by the SCC was what is the breadth of the prohibition of discrimination regarding employment in the Code – could that discrimination be perpetrated by someone other than a superior in the workplace or the employer?

The Court examined the language of “regarding employment” in s.13(1)(b) the Code. The SCC determined that the term “regarding” employment reflects a broad concept that means the matter must be related to employment in some way. After a thorough analysis, the Court found that “regarding employment” does not only prohibit discrimination within the employment relationship hierarchy.

The SCC found in order to determine whether conduct falls under s.13(1)(b) the Code a contextual approach must be applied to examine the facts of each particular case to determine whether the alleged discriminatory behaviour has a sufficient nexus to the employment context. If the nexus exists then there has been discrimination “regarding employment” and the complainant can then seek a remedy against the individual discriminating. The Court also outlined some factors to assist with the contextual analysis:
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.

The Court was careful to emphasize that these factors are not exhaustive and their relevance will depend on the circumstance of each situation.

Applying the above factors in relation to the case at hand, the SCC determined that the alleged discriminatory conduct of Mr. Schrenk would fall under s.13(1)(b) of the Code. Taking everything into account, the SCC affirmed the Tribunal’s decision and allowed the appeal.

Although this case related to the Code in British Comlumbia, there is the potential it may have an effect on Ontario’s jurisprudence. Ontario’s Human Rights Code also prohibits workplace discrimination but the wording is slightly different, stating “every person has a right to equal treatment with respect to employment without discrimination…”. [Our emphasis added.] It may be that the wording is similar enough to British Columbia’s Code that the Schrenk decision could spark new liability in relation to discrimination in Ontario, resulting in human rights claims from individuals that may not have a direct employment relationship with the respondent.