Canadian Supreme Court finds employment discrimination does not need to come from manager
British Columbia Human Rights Tribunal v Schrenk [2017] 2 SCR 795
Summary
The Supreme Court of Canada was asked to consider s 13(1)(b) of the Human Rights Code of British Columbia (the BC Code) which provides that “a person must not discriminate against a person… regarding employment or any term or condition of employment.”
The majority of the Supreme Court decided that the law prohibits discrimination perpetrated against an employee by any person integral to their employment context, not just someone with managerial control.
Facts
Mr Sheikhzadeh-Mashgoul and Mr Schrenk both worked on a road improvement project in British Columbia. The men were employed by different companies to carry out different roles and neither held a direct position of authority or control over the other. Whilst on site, Mr Schrenk made several racist and homophobic remarks directed at Mr Sheikhzadeh-Mashgoul who had immigrated from Iran and identified as Muslim.
After Mr Schrenk was moved from the worksite, he continued to harass Mr Sheikhzadeh-Mashgoul over email. In March 2014, he sent an email to Mr Sheikhzadeh-Mashgoul which made derogatory assertions about his sexual orientation. Shortly after, Mr Schrenck was terminated by his employer.
The Supreme Court of Canada was asked to decide whether the discrimination experienced by Mr Shiekhzadeh-Mashgoul was sufficiently connected to his employment to be in breach of s13(1)(b) of the BC Code.
Decision of Supreme Court of Canada
In determining what constituted discrimination ‘regarding employment,’ the Supreme Court considered whether the law prohibiting discrimination against an employee was confined to their employer or superior in the workplace, or whether the law prohibited discrimination from a range of persons within a workplace including co-workers.
The majority preferred a broad interpretation of the BC Code that would prohibit discrimination regarding employment not only by employers but by any persons who may be integral to the workers employment context. . To arrive at this decision, the majority undertook a contextual analysis of the provision looking at the text, the scheme and purpose of the Code. The purposes outlined in s 3 include
(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
(c) to prevent discrimination prohibited by this Code;
(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;
(e) to provide a means of redress for those persons who are discriminated against contrary to this Code.
In the majority decision, Justice Rowe outlined that the BC Code’s purpose “…sets out an ambitious aim that supports an expansive and not restrictive approach to the terms ‘regarding employment in s13(1)(b)”. The BC Code aims to remove barriers to participation in the social, political and cultural life of British Columbia, and not just economic participation. It was therefore open for the majority to find that discrimination ‘regarding employment’ was not merely confined to the relationship between an employer (or superior) and employee.
The majority identified the process or test that the Human Rights Tribunal had to undertake in order to determine whether discriminatory conduct has a ‘sufficient nexus’ with the employment context to fall within the legislative scheme. It stated there were three factors that the Tribunal must consider in order to find a sufficient nexus with the employment context, namely whether:
- The alleged perpetrator of the discrimination was integral to the complainant’s workplace.
- The impugned conduct occurred in the complainant’s workplace.
- The complainant’s performance at work, or their workplace environment, was negatively affected by the discrimination.
Using this three part test, the majority of the Supreme Court found that Mr Schrenk’s conduct came within the ambit of s 13(1)(b) and that the complaint was within the jurisdiction of the Tribunal.
Commentary
Mr Schrenk’s conduct, if it occurred in Australia, would likely breach Australian anti-discrimination legislation. For example, section 28B of the Sex Discrimination Act 1984 (Cth) has a broad definition of workplace participant. Sexual harassment by a contractor towards an employee has been found unlawful under this provision (see Ewin v Vergara (No 3) [2013] FCA 1311). Section 94 of the Equal Opportunity Act 2010 (Vic) has a similar provision.
The decision has broken new ground in discrimination law within Canada as it has acknowledged the different kinds of discrimination that may arise from a range of persons beyond the primary employer or superior of a person within a work place environment.
The full decision can be found here.
Jessica Dawson-Field is a Lawyer and Jack Faine is a Trainee Lawyer at Maurice Blackburn Lawyers.