Trevor Thomas, Lawyer.
As we’ve discussed previously on our blog, employees are protected against workplace discrimination by section 13 of the British Columbia Human Rights Code (the Code), which states:
A person must not refuse to employ or refuse to continue to employ a person, or discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
Given this broad language, it seems reasonable to expect that all workplace relationships are governed by section 13. In fact, they aren’t: some employment relationships fall outside the Code and are therefore beyond the jurisdiction of the Human Rights Tribunal (the Tribunal).
In Schrenk v. British Columbia (Human Rights Tribunal), the BC Court of Appeal discusses one example of such a relationship.
Schrenk v. BCHRT: Background Facts
Mr. Schrenk was employed by Clemas Contracting Ltd. (the Company) as a site foreman on a road improvement project in Delta. Working on the same site was Mr. Sheikhzadah-Mashgoul, the representative of a consulting engineering firm serving as the project’s contract administrator. Mr. Sheikhzadah-Mashgoul was responsible for supervising the work performed by the Company (and, therefore, Mr. Schrenk).
- Schrenk and Mr. Sheikhzadah-Mashgoul worked for two separate employers.
- Schrenk was subordinate to Mr. Sheikhzadah-Mashgoul.
In the course of their work, Mr. Schrenk made derogatory statements to Mr. Sheikhzadah-Mashgoul about his place of birth, religion and sexual orientation. These statements were followed by derogatory emails from Mr. Schrenk to Mr. Sheikhzadah-Mashgoul.
When these statements came to light, the Company dismissed Mr. Schrenk.
The Human Rights Claim
As a result of Mr. Schrenk’s statements, Mr. Sheikhzadah-Mashgoul filed human rights complaints against both him and the Employer, alleging discrimination regarding employment under section 13 of the Code.
In response, the Company and Mr. Schrenk asked the Tribunal to dismiss the complaint because the alleged discrimination did not fall within the meaning of section 13. The Tribunal disagreed and found that it had jurisdiction over the matter. The Company and Mr. Schrenk then asked the BC Supreme Court to overturn the Tribunal’s decision; the Court agreed with the Tribunal, however, finding that the alleged discrimination fell within section 13.
Undeterred, Mr. Schrenk appealed the Supreme Court’s decision to BC’s Court of Appeal, where he was at last successful. The Court of Appeal agreed with him that the Tribunal did not have jurisdiction over Mr. Sheikhzadah-Mashgoul’s complaint and that his human rights claim against Mr. Schrenk was therefore dismissed.
Discrimination Depends on Power or Authority
In reaching its decision, the Court of Appeal focused on the power relationship between Mr. Schrenk and Mr. Sheikhzadah-Mashgoul.
Specifically, the Court found that because Mr. Schrenk was subordinate to Mr. Sheikhzadah-Mashgoul, the alleged discriminatory conduct was not captured by the phrase “regarding employment” in section 13. In other words, Mr. Schrenk did not have the authority to discriminate against Mr. Sheikhzadah-Mashgoul.
As the Court explained in its written judgment: Persons should not be forced by others who occupy positions of power to suffer insult or abuse as a term or condition of employment. The person who forces them to endure any burden not equally borne by others in the workplace discriminates against them regarding employment or the conditions of employment. Economic pressure to endure the injury can be exerted upon an employee not only by the employer but by those who can dictate terms of employment to the employer – persons or groups such as unions …, trade groups … and even significant customers … Co‑workers who occupy positions of power can dictate the conditions of employment of their fellow workers, as a result of power or authority conferred upon them by the employer …
… Not all insults inflicted upon employees, even in the course of their employment, amount to discrimination regarding employment. Such insults can amount to discrimination regarding employment if the wrongdoer is clothed by the employer with such authority that he or she is able to impose that unwelcome conduct on the complainant as a condition of employment, or if the wrongdoing is tolerated by the employer. If the wrongdoer has no such power or authority, the Tribunal has jurisdiction to consider whether the complainant’s employer played some role in allowing the conduct to occur or continue, in which case the insult is endured as a consequence of employment. But even then, the Tribunal has no jurisdiction over the wrongdoer.
Based on the decision in Schrenk, we now have a better understanding of the meaning of discrimination “regarding employment” under the Code:
- The “wrongdoer” – the person engaging in discriminatory behaviour – must have a degree of authority over the “victim”. Otherwise, the wrongdoer’s actions will likely not fall within section 13.
- If the victim’s employer permits the discrimination to continue, the employer may be liable to the victim even if the wrongdoer’s actions are not caught by section 13.
Schrenk also offers key lessons for both employees and employers:
- Employees claiming a section 13 violation will need to show that the discrimination was directed at a subordinate.
- Employers should address any possible workplace discrimination immediately, not simply to limit their financial exposure, but more importantly to ensure a safe workplace built on sustainable employment relationships.
Have questions about workplace discrimination? Contact us!
 Following the Supreme Court’s decision, Mr. Sheikhzadah-Mashgoul withdrew his complaint against the Company.
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