Discrimination in the Workplace – Who Can Be Liable?21-Dec-17
By Teresa Haykowsky and Vicki Giles
The Supreme Court of Canada recently found that a B.C. worker can advance a harassment complaint under B.C.’s Human Rights Code (B.C. Code) against a person working for another company who works in the same workplace as the complainant.
In 2013, while working as a supervising civil engineer for Omega and Associates Engineering Ltd. (the company hired to supervise a road improvement project), Mr. Sheikhzadeh-Mashgoul was the target of repeated racist and homophobic statements by the Site Foreman, Edward Shrenk. Mr. Shrenk worked for Clemas Construction Ltd., the primary construction contractor hired to carry out the project. Despite working for different employers, the two employees worked side by side on the jobsite. After Mr. Sheikhzadeh-Mashgoul reported his concerns to Omega, Omega asked Clemas to remove Mr. Shrenk and they did so.
Mr. Sheikhzadeh-Mashgoul filed a human rights complaint against Mr. Shrenk and Clemas alleging that he had been discriminated against “regarding employment”. Mr. Shrenk and Clemas defended the complaint on the basis that Mr. Sheikhzadeh-Mashgoul was not in an employment relationship with either Mr. Shrenk or Clemas.
The B.C. Code provides that “A person must not discriminate against a person regarding employment.” The B.C. Human Rights Tribunal found it had jurisdiction over Mr. Sheikhzadeh-Mashgoul’s complaint on the basis that the wording of the section is not limited to prohibiting discrimination by an employer, but is intended to protect employees from discrimination with respect to employment generally.
B.C.’s Court of Appeal disagreed with the Tribunal finding that the wording in the B.C. Code is not intended to apply to a company that does not exercise authority over a complainant’s employment.
The Supreme Court of Canada disagreed. It held that Mr. Shrenk’s conduct was covered by the B.C. Code even though Mr. Shrenk was not Mr. Sheikhzadeh-Mashgoul’s employer or superior in the workplace.
The Court concluded that the relevant provision in the B.C. Code is not solely limited to protecting employees from discriminatory harassment by their employer, or another employee of their employer. Rather, it protects workers against discriminatory conduct generally when there is a sufficient connection to employment. In making this determination, the factors to be considered include: (1) whether the alleged perpetrator was integral to the complainant’s workplace; (2) whether the conduct occurred in the complainant’s workplace; and (3) whether the complainant’s work environment was negatively affected.
Implications for Alberta Employers
The Alberta Human Rights Act does not have the same language as the B.C. Code.
Section 7 of the Alberta Human Rights Act prohibits employers from discriminatory conduct against any person with regard to employment (section 7) as opposed to the B.C. Code which prohibits a person from discriminatory conduct against a person regarding employment.
Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3, remains the governing authority on how to determine whether a particular relationship qualifies as “employment” under the Alberta Human Rights Act. In that case, the Alberta Court of Appeal determined that a contextual approach was required, including consideration of factors such as the normal indicia of employment, who has the direct benefit of the employee’s services, and the extent to which the employee is a part of the alleged employer’s organization.
It is not likely that workers will be able to file discrimination complaints against any party other than their employer. That said, employers should recognize that human rights legislation does protect an employee if he/she is discriminated against by a third party while performing his/her job. For example, if a customer sexually harasses an employee of a retailer, the employer has an obligation to protect its employee from the inappropriate behaviour. If the employer fails to take reasonable steps to stop the discrimination, the employer may still be liable for discrimination.