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Does Freedom From Discrimination in Employment Only Apply within An Employee’s Own Workplace?

Whitten and Lublin | Apr 05, 2018

Under human rights law, every person has a right to be free from discrimination on the basis of prohibited grounds. These grounds often include race, gender, sex, creed, religion, age, illness, disability family status, and more. Undoubtedly, employees are protected from discrimination upon prohibited grounds perpetrated by superiors within the workplace they are employed. However, what might not be as clear is whether employees are protected against discrimination within an employment context from others that are not an agent of their employer. With regards to British Columbia’s Human Rights Code, the Supreme Court of Canada provided an answer to this in British Columbia Human Rights Tribunal v. Schrenk (2017).

In the case, Schrenk was the alleged perpetrator of discrimination on the basis of sexual orientation, religion, and origin. Schrenk was employed by Clemas Contracting Ltd. as a site foreman under the supervision of Sheikhzadeh-Mashgoul, employed by Omega and Associates Ltd. as contract administrators for the construction site. This was a clear case of harassment by Schrenk with unequivocal evidence to this effect (most notably through email). Schrenk, however, challenged the BC Human Rights Tribunal over whether the tribunal had the jurisdiction to hear a complaint by Sheikhzadeh-Mashgou. Schrenk claimed he was not an agent of Omega, thus not creating a condition of employment for Sheikhzadeh-Mashgou that was subject to harassment.

In keeping consistent with the language of the BC Human Rights Code, the SCC ruled that the Code was meant to be interpreted in a broad context. Interpreting the code in a narrow context, such as only applying to discrimination within an employee-employer context, defeated the purpose of the Code. Specifically, the language in the code consisting of “A person must not … (b) discriminate against a person regarding employment or any term or condition of employment because of race … place of origin, gender identity …” was significant. The SCC maintained that if the intent of the Code was to only limit discrimination in an employee-employer context, the broad use of the word ‘person’ could easily have been replaced with a narrow term such as ‘employer’. As far as BC human rights law is concerned, the SCC has determined that there only needs to be a nexus established between one’s employment and discrimination in order to file a complaint against an individual.

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