Canadian HR Reporter

CANADIAN HR REPORTER FEBRUARY 2018 10 NEWS CETA: New Provisions for Temporary Entry Into Canada. Get your organization up to speed on CETA provisions that affect the movement of employees between Canada and the EU PRESENTER Sergio R. Karas Karas Immigration Law Professional Corporation Topics to be discussed include: • Business visitors: new criteria for visits of short duration, permissible activities • Intra-company transferees • Professionals: who is allowed in and who is not? Sectors covered, list of professions that are NOT included in CETA • Contractual Service Suppliers: what is the difference with professionals? • Investors: who can get a Work Permit and what do they need to demonstrate? DATE: February 27, 2018 TIME: Noon - 1:00 p.m. ET REGISTER: www.cpdcentre.ca/hrreporter WEBINAR SERIES harassment by their superiors in the workplace. In fact, section 13 "prohibits discrimination against employees whenever that dis- crimination has a sufficient nexus within the employment context," said the court. "is may include discrimina- tion by their co-workers, even when those co-workers have a different employer." In determining if there is a suf- ficient nexus, the Human Rights Tribunal must conduct a con- textual analysis that considers: whether the respondent was in- tegral to the complainant's work- place; whether the impugned con- duct occurred in the complain- ant's workplace; and whether the complainant's work performance or work environment was nega- tively affected. "e contextual interpretation furthers the purposes of the code by recognizing how employee vulnerability stems not only from economic subordination to their employers, but also from being a captive audience to other perpetrators of discrimination, such as a harassing co-worker," said the court. To be clear, the issue is not whether Schrenk's alleged con- duct would amount to discrimi- nation, said the court. "No one disputes this. Rather, the question in this appeal is whether such discrimination was 'regarding employment.'" Determining whether con- duct amounts to discrimination "regarding employment" is sup- ported by the text, scheme and purpose of the code, it said. And the words "regarding employ- ment" indicate that the discrimi- nation at issue "must be related to the employment context in some way, without solely prohibiting discrimination within hierarchi- cal relationships." Consequently, the tribunal did not err in concluding Schrenk's conduct was covered by the Human Rights Code, even though he was not S-M's employer or superior. "As the foreman of the worksite, (Schrenk) was an integral and un- avoidable part of S-M's work envi- ronment. (Schrenk's) discrimina- tory behaviour had a detrimental impact on the workplace because it forced S-M to contend with re- peated affronts to his dignity. is conduct amounted to discrimi- nation regarding employment: It was perpetrated against an em- ployee by someone integral to his employment context." It should be noted three of the nine Supreme Court judges dis- sented with this decision, saying the workplace discrimination prohibition in the Human Rights Code applied only to employer- employee or similar relationships. Shifting power dynamics It's about the power dynamic be- tween a perpetrator and the com- plainant, which may be economic, as between a supervisor and an employee, or may involve another issue, said Gage. "ere does have to be a power issue, I think that's what it's aimed at, but it's taking a broader look at what power could mean, and all of that it going to be contextual," she said. "e complainant still has to be an employee, and it has to be in the employment context, so there has to be that sufficient nexus, as the court calls it, between the be- haviour being complained of and their employment. So the em- ployer is no longer just respon- sible for the behaviour of their supervisors and the employee specifically, they're responsible for a much broader category of potential perpetrators, and so who that might be is going to de- pend on the context and depend on the employment situation." If the dissent had been success- ful and read the phrase "regard- ing employment" narrowly — so it only covered people who are in a formal relationship with econom- ic power like that between an em- ployer and employee — the scope or coverage of the protection against discrimination would be considerably reduced, said Young. "is tells us the majority of the court understands that there are other kinds of power that circulate in the workplace, not merely economic power, and that harassment between co-workers, from a worker to an employer, are equally damaging to dignity and well-being in the workplace, and our prohibition against discrimi- nation needs to recognize that." It's a decision that takes account of the context of the modern workplace, she said, "which is that many different kinds of power circulate in our society — power based on race, based on class, not just the formal economic class of someone being your boss — and all of those matter and shape the environment in our workplace." Employment law has always looked for situations where there's a nexus, and an employer has an obligation to pay attention to what's happening, according to Guarascio. "In the modern workplace — where you're looking at shared worksites, online conduct — those things really skew the boundaries of old-school thinking and em- ployment, so it's completely ap- propriate that the court is clarify- ing the breadth of the potential scope of responsibility." In this case, the court under- stands that the source of unwant- ed conduct could come from any- where, whether that's a customer, patron, client, co-worker, super- visor or contractor who's on the premises, she said. "e real focus needs to be re- medial for the person who's im- pacted by the conduct." e case says contextual analy- sis is especially relevant where discriminatory conduct persists, despite the fact that an employer has taken all possible steps to stop it, said Guarascio. "It's really looking at individual accountability." It also shows that those respon- sible for workplace conduct can include the employer or multiple employers at a shared worksite, she said, "and the specific indi- viduals perpetrating the conduct are going to be held accountable for their actions or, in the case of employers, for their inaction in addressing the conduct." Another aspect of this involves the concept of vicarious liability, which can apply to organizations, and is being further imported into discrimination cases, said Guarascio. "Vicarious liability applies if an employer sanctions or tasks an employee with doing an act, au- thorizes them to do it, and then that act is wrongful. But it can also apply in situations where an em- ployee's act is so connected with their employment duties that it's considered a way of or a mode of doing their job." "So what courts try to get at there is that if a risk for a victim is basically created by the business enterprise of an employer, then the employer can be on the hook for that conduct." Lessons for HR As a result of this kind of decision, employers should be proactive in having a healthy workplace without these forms of discrimination and abuses of power, according to Young. "It means (employers) need to think seriously about their HR obligations and about cultivat- ing a workplace environment that's respectful not just between themselves and employees, but between employees, between ex- perts or consultants brought into the office," she said. "It also means that co-workers now have some legal responsibili- ties to each other as well, and so there's a need to let people know in the workplace that 'You're ac- countable for your discriminatory actions towards another.'" e decision has applications for other sectors, such as the res- taurant industry, said Gage. "I'm hoping that this will be a note to employers that they should think about the sexual- ized atmosphere that they often have, and try to take proactive ways to make sure their employ- ees are protected… because they, of course, as the employer, even if it's their patron who does the discrimination, they may well be responsible themselves." While some might think this decision will open the floodgates to further human rights com- plaints, in some ways it's actu- ally very helpful for employers if they are diligent, said Guarascio, "because it's creating space for an employer to establish that it's not responsible for the conduct if it's done the right things." If an employer provides train- ing, follows policies, addresses inappropriate conduct, provides support to those in need — and it does all this appropriately — then it can say it's not responsible for this, and it's the individual's who's responsible, she said. 'e court is clarifying the scope of responsibility' HUMAN RIGHTS < pg. 3 "e complainant still has to be an employee, and the behaviour has to be in the employment context, so there has to be that sufficient nexus." Canada's Supreme Court Justices in Ottawa in December 2016. REUTERS/Chris Wattie

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