Canada: Employment related discrimination is not limited to discriminatory conduct by workplace superiors

In the recent case of British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62, the Supreme Court of Canada considered whether the British Columbia Human Rights Code (the “Code”) protects employees from all discrimination in connection with their employment, beyond discriminatory conduct by employers or supervisors.

A civil engineer who was hired to supervise a road improvement project in British Columbia had filed a discrimination complaint with the British Columbia Human Rights Tribunal (the “Tribunal”) against a site foreman and superintendent whom he supervised. The two men were employed by separate companies, despite working on the same project site. The alleged harasser and the employer argued that the Tribunal could not hear the complaint, as the alleged harasser did not exercise control over the complainant and did not work for the same employer as the complainant.

The Tribunal held that it could hear the complaint. The Code prohibits “a person” from discriminating against another person “regarding employment”. The Tribunal found that this prohibition could apply to the actions of people who were not supervisors or employers. The Supreme Court of British Columbia upheld the Tribunal’s decision. However, the British Columbia Court of Appeal held that the Tribunal could only address complaints of employment-related discrimination against individuals who could inflict discriminatory conduct as a condition of employment.

The majority of the Supreme Court of Canada endorsed a broad interpretation of “discrimination regarding employment”. The Supreme Court stated that the Code does not dictate who can perpetrate discrimination but, rather, was intended to prohibit any discriminatory conduct against an employee, so long as the conduct was sufficiently connected to the employment context.

The majority decision emphasized that all workplace relationships—including those between co-workers—can be a source of discrimination in employment. The Supreme Court noted that power can be exerted in the workplace in ways others than “controlling the paycheck”. For example, customers may exert economic power over employees or there may be power imbalances in the workplace along gender or racial lines.

The Supreme Court emphasized that a contextual analysis is necessary to assess whether discriminatory conduct was connected to a person’s employment. The following questions are relevant to this contextual analysis:

• Was the perpetrator integral to the complainant’s workplace?
• Did the discriminatory conduct occur in the complainant’s workplace?
• Was the complainant’s work performance or work environment negatively affected?

The Supreme Court also stated that, while the perpetrator of the discriminatory conduct could be held personally liable, an employer may be found vicariously liable for discrimination by its employees if the employer is aware of and does not take steps to address the discriminatory conduct.

The Supreme Court’s decision confirms that an employer’s vicarious liability may extend beyond the discriminatory actions of workplace superiors. Employers may be potentially liable for their employees’ behaviour toward any individuals in the workplace, even towards individuals who are employed by another company.