Can you file a human rights complaint against someone who harasses you at work, but who does not work for your employer? According to a recent Supreme Court of Canada decision, the answer may be yes.
In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, released on December 15, 2017, the Supreme Court found that an employee could pursue a human rights complaint against someone who made discriminatory statements to him at work, even though that person did not work for his employer.
Facts
The complainant, Mr. Sheikhzadeh-Mashgoul, was a civil engineer working for a firm that was contracted to supervise a road improvement project. In that role, he supervised work by a construction contractor hired to carry out the project. The construction contractor employed the respondent, Mr. Schrenk, as site foreman and superintendent.
Mr. Sheikhzadeh-Mashgoul is Muslim and immigrated to Canada from Iran. Mr. Schrenk was alleged to have discriminated against Mr. Sheikhzadeh-Mashgoul when he made statements denigrating Mr. Sheikhzadeh-Mashgoul on the basis of religion, place of origin, and sexual orientation. The statements were made on the worksite and by e-mail.
Decision
The BC Human Rights Code, like the Nova Scotia Human Rights Act, prohibits discrimination in employment. The language in the BC statute says, “a person must not… discriminate against a person regarding employment or any term or condition of employment” (s.13(1)(b)).
The Supreme Court found that this section was not limited to prohibiting discriminatory harassment by an employee’s manager or supervisor. As long as there is a sufficient nexus between the discriminatory conduct and the claimant’s employment, the claimant can pursue a human rights complaint against the offending person.
The Court particularly noted that employees are vulnerable, not just because of their economic subordination to their employers, but because they can be a captive audience to perpetrators of discrimination in the workplace.
In deciding whether there is a sufficient nexus with the claimant’s employment, a court must adopt a contextual analysis. This includes consideration of the following factors:
(1) Was the respondent integral to the claimant’s workplace?
(2) Did the impugned conduct occur in the claimant’s workplace? and
(3) Was the claimant’s work performance or work environment negatively affected?
In this case, the claim could proceed because Mr. Shrenk was foreman at the worksite and therefore an integral and unavoidable part of Mr. Sheikhzadeh-Mashgoul’s workplace, even though he worked for another employer. The conduct occurred in the workplace and negatively affected Mr. Sheikhzadeh-Mashgoul’s work environment.
Implications for Nova Scotia
The language in the Nova Scotia Human Rights Act is not identical to that in the BC Human Rights Code, but it is similar. The Act says, “No person shall in respect of … employment; … discriminate against an individual or class of individuals…” (s.5(1)(d)). This would likely be given the same broad interpretation as the language in the BC Code.
This is an important development in human rights law for employees who suffer discrimination in the workplace. While this case was about a co-worker who had a different employer, it is possible that it could extend to other persons who are integral to someone’s employment, such as a client that an employee is required to work with on a regular basis. This decision opens up the possibility of employees pursuing human rights complaints directly against a perpetrator of discriminatory harassment, even if that person does not work for the same employer.
For more information about work law, contact Jillian Houlihan.