10 Jul Expanded Liability for Workplace Harassment
Whereas traditionally, harassment and discrimination complaints have been directed at employers or colleagues, a recent decision from the Supreme Court of Canada has many employers worried about increased liability for workplace harassment between parties without a direct employment relationship.
Mohammadreza Sheikzadeh-Mashgoul was a civil engineer and was assigned by his engineering firm to consult on a road improvement construction project. Part of Mr. Sheikzadeh-Mashgoul’s job was to supervise workers on the site. As is often the case on construction sites, these workers had a different employer than Mr. Sheikzadeh-Mashgoul.
One of these workers, Edward Schrenk, repeatedly made discriminatory and harassing insults about Mr. Sheikzadeh-Mashgoul’s religion, birthplace and sexual orientation. Having enough of Mr. Schrenk’s racist and homophobic slurs, Mr. Sheikzadeh-Mashgoul brought a human rights complaint against Mr. Schrenk and Mr. Schrenk’s employer.
Mr. Schrenk and his employer argued that Mr. Sheikzadeh-Mashgoul couldn’t bring a complaint against them since they were neither Mr. Sheikzadeh-Mashgoul’s colleague nor employer. They argued that the British Columbia Human Rights Tribunal (BCHRT) did not have jurisdiction over the complaint since Mr. Sheikzadeh-Mashgoul and Mr. Schrenk had different employers.
The Tribunal ruled that it did have jurisdiction, a decision that was overturned at the BC Court of Appeal. However, the Supreme Court of Canada has agreed with the BCHRT that this matter between Mr. Sheikzadeh-Mashgoul and Mr. Schrenk was within the Tribunal’s jurisdiction. The matter now sits again with the BCHRT.
The Supreme Court’s Decision
To support its decision, the Supreme Court of Canada cited the BC Human Rights Commissions prohibition on discrimination in the employment context. The court argued that the BC Human Rights Code protects workers from discrimination and harassment in employment regardless of the identity of the perpetrator.
Despite the lack of direct employment relationship, the Supreme Court ruled that Mr. Sheikzadeh-Mashgoul’s complaint was valid.
According to Justice Abella, this responds “to the realities of modern workplaces, many of which consist of diverse organizational structures which may have different employers and complex work relationships… [and] recognizes that preventing employment discrimination is a shared responsibility among those who share a workplace.”
Similarly, Justice Rowe agreed that the Human Rights Code “supports an approach that views employment as a context requiring remedy against the exploitation of vulnerability rather than as a relationship needing unilateral protection.”
What this Means for Employers
The Supreme Court’s decision has expanded scope of Human Rights protection to non-traditional workplace relationships, including parties who have no direct employment relationship. This allows individuals to proceed with employment discrimination complaints against individuals and organizations with whom they have no formal employment relationship. Employers may now be liable for human rights claims from people who are not even their employees.
Accordingly, an individual may bring a human rights complaint if the:
- perpetrator was important to the complainant’s workplace
- discrimination happened in the complainant’s workplace
- complainant’s work environment or performance was negatively affected by the perpetrator’s action.
Outside of BC, the impact of the Supreme Court’s decision depends on the wording in your province’s human rights legislation. Ontario’s Human Rights Code is similar to that of BC which suggests Ontario employers will also face this new liability for harassment and discrimination in the workplace.