Canadian Employment Law Today

Liability for discrimination at work reaches new levels Supreme Court of Canada's decision in B.C. case shows employers must address discriminatory behavior by non-employees if it is in the context of the work environment BY LAURA WILLIAMS T here was a time when workplace discrimination was commonplace, even an accepted practice, across Canada. Employees who reached a defined age, for example, might be forced to retire depending on the policies of the orga - nization that employed them or the nature of their position. Women and minorities, too, might be dissuaded or blatantly barred from pursuing certain positions, their ca - reer advancement limited by longstanding misconceptions or prejudice. Much has changed in 2018. Now, ev- ery province has human rights legislation prohibiting discrimination on more than a dozen grounds including age, gender, race, religion and disability. In an increasingly multicultural country that accepts hun - dreds of thousands of newcomers each year, not to mention one that embraces diversity, this is incredibly important progress. In keeping with that ongoing legislative evolution, organizations of all sizes have worked to reform everything from recruit - ment practices to workplace policies to reflect new laws and accepted standards designed to protect marginalized commu- nities. ey've taken great strides to eradi- cate workplace discrimination and mitigate the risk of human rights violations, even if much work needs to be done to correct de- cades of now-unacceptable practices. is progressive approach hasn't all been borne of benevolence, of course. Countless studies have connected the benefits of ro - bust employee engagement to bottom-line performance, a positive influence on ev- erything from innovation and productiv- ity to worker attraction and retention. Not surprisingly, employees who feel they have a fair shot at achieving their full workplace potential in a harassment-free environ - ment with equal opportunities tend to stay around longer and give their all. In short, organizations have fought back against workplace discrimination because they must — thanks to human rights and la - bour and employment laws that have com- pelled a change in behavior — and because doing so is very good for business. A Supreme Court of Canada ruling in late 2017 takes those legal requirements to a new level. In British Columbia Human Rights Tribu- nal v. Schrenk, Mohammadreza Sheikhza- deh-Mashgoul, an employee of a B.C.-based engineering firm hired by a municipality to oversee a road improvement project, alleged that Edward Schrenk, the site foreman and superintendent of the primary construc - tion contractor hired by the municipality, had made continual racist and homophobic comments about Sheikhzadeh-Mashgoul in the workplace. e engineering firm, act - ing as a consultant, had certain supervisory powers over employees of Schrenk's em- ployer, but Schrenk was not its employee. Sheikhzadeh-Mashgoul filed an applica- tion before the B.C. Human Rights Tribunal against Schrenk and Schrenk's employer, the construction contractor, alleging dis- crimination in the workplace. e tribunal found that the B.C. Human Rights Code did not prohibit only an em- ployer or someone in an employment-like relationship with the complainant from dis- criminating regarding employment. It deter- mined that Schrenk discriminated against Sheikhzadeh-Mashgoul regarding employ- ment, even though they were not employed by the same company, and Sheikhzadeh- Mashgoul as supervising engineer had sig- nificant influence over how Schrenk and his employer performed their work. e tribunal's decision was upheld by the B.C. Supreme Court but overturned by the B.C. Court of Appeal, which found that only those who have power to inflict discrimi - natory conduct as a condition of employ- ment can discriminate against an employee. Since Schrenk and Sheikhzadeh-Mashgoul worked for different employers, the Court of Appeal found that Schrenk could not have discriminated against Sheikhzadeh- Mashgoul regarding employment. An appeal to the Supreme Court of Can - ada delivered a more expansive interpreta- tion of the law, in line with the tribunal's decision. e top court found that the code was applicable because it specifically pro- hibits discrimination "regarding employ- ment," the language broad enough to create a "sufficient nexus with the employment context," and therefore not restricting who can perpetrate the discrimination. Deter - mining discrimination is dependent on con- textual factors including, but not limited to: •Whether the perpetrator was integral to the complainant's workplace •Whether the discrimination occurred in the complainant's workplace •Whether the complainant's work perfor - mance or environment was affected nega- tively by the discriminatory behaviour. Since Schrenk was an integral and un- avoidable part of Sheikhzadeh-Mashgoul's work environment, the Supreme Court found that his behavior amounted to dis- crimination regarding employment. Liability for behavior of contractors e importance of this ruling should not be lost on employers. e days of treat- ing discriminatory transgressions by a loosely-affiliated contractor or service provider with a shrug are gone. If a non- employee contractor, vendor or service provider engages in behaviour akin to that in the Schrenk case, the Supreme Court of Canada has made it abundantly clear that the organization could be held liable, depending on how relevant provi- sions contained within the human rights code in the respective province is word- ed. Ontario, Manitoba, New Brunswick, Nova Scotia, and Prince Edward Island human rights legislation contain similar- ly broad wording to B.C.'s prohibition of discrimination "regarding employment." As outlined above, the test for determin- ing liability in cases such as these — and where provincial human rights code lan- guage is broad — is contextual: Is the third party's engagement with the organization significant — for example, does the engage- ment have an integral impact on your work- place — and does that unwanted behaviour 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: DISCRIMINATION HUMAN RIGHTS legislation across Canada is frequently evolving and adding protected grounds against discrimination, including discrimination with regards to employment. A recent change in many jurisdictions — and backed up by the nation's top court — doesn't just limit employment-related discrimination to between employees. Any discrimination that affects an employee while he's trying to do his job may require the employer to take action or face liability. BACKGROUND

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