Schrenk Revisited: Employment Discrimination and the “Sufficient Nexus” Test

Tiffany Zanatta

Tiffany Zanatta

By Tiffany Zanatta.

Almost exactly a year ago, my colleague Trevor Thomas wrote about our Court of Appeal’s conclusion in Schrenk v. British Columbia (Human Rights Tribunal) that certain employment relations fall outside the scope of the BC Human Rights Code and are therefore beyond the jurisdiction of the Human Rights Tribunal (the Tribunal). It turns out that his post was not the end of this story, however.

The Tribunal appealed the Court of Appeal’s decision to the Supreme Court of Canada (the SCC), who recently released its decision in British Columbia (Human Rights Tribunal) v. Schrenk, (and the final word on the subject).

As we have explained elsewhere on this blog, the Code provides protection for employees against discrimination in an employment context. In Schrenk, the SCC considered the following questions:

  1. Can discrimination in employment be committed by anyone other than a supervisor or person in authority?
  2. Can discrimination in employment can be committed by someone who is not employed by the same employer?

Background

The city of Delta, BC was completing a road improvement project and contracted different aspects of the job to different contractors. They hired Omega and Associates, with whom Mr. Sheikhzadeh-Mashgoul was employed, as their civil engineer on the project. They also hired Clemas Construction, who employed Mr. Schrenk as site foreman and Superintendent. Omega, including Mr. Sheikhzadeh-Mashgoul, had certain supervisory powers over Clemas Construction and as a result Mr. Schrenk.

Mr. Sheikhzadeh-Mashgoul alleged that over the course of the construction project, Mr. Schrenk, on various occasions, made highly discriminatory comments regarding Mr. Sheikhzadeh-Mashgoul’s place of birth, religion and sexual orientation. Mr. Schrenk was ultimately dismissed by Clemas Construction; however, this did not stop the derogatory emails.  The facts were not in dispute before the SCC. The only question was whether the Tribunal had jurisdiction to hear Mr. Sheikhzadeh-Mashgoul’s human rights complaint against Mr. Schrenk.

The SCC Champions Human Rights Protections

The SCC ultimately concluded on the following bases that the Tribunal had the jurisdiction to hear Mr. Sheikhzadeh-Mashgoul’s complaint:

  1. Just because you are a supervisor/manager or another person in authority, this does not mean that you are not a vulnerable person or that human rights protections do not extend to you.,
  2. Everyone in the workplace deserves human rights protection, not only those in a formal employment relationship.

More specifically, everyone is entitled to protection against discrimination by the Code if there is a “sufficient nexus” between the employment context and the prohibited discrimination. The SCC identified several factors to be considered when deciding whether the “sufficient nexus” test is met, including:

  1. Whether the person discriminating was integral to the complainant’s workplace (such as someone the person must work with every day).
  2. Whether the discrimination happened in the workplace (as conduct in a personal non-work setting is not covered by the Code).
  3. Whether the complainant’s performance or the work environment was negatively affected.

Applying the above factors, the SCC found that Mr. Schrenk as site superintendent and foreman was both an integral and unavoidable part of Mr. Sheikhzadeh-Mashgoul’s job and that Mr. Sheikhzadeh-Mashgoul’s work environment was negatively affected as he faced several different incidents of discriminatory behaviour. These conclusions put the complaint firmly within the jurisdiction of the Tribunal.

Takeaways

In this decision, the SCC has recognized the reality of the different ways that discrimination can manifest in the workplace by formally acknowledging that it is possible for a subordinate to discriminate against a supervisor, despite the reverse power balance.

Furthermore, this decision has provided clear guidance to employers and employees that the Code will be applied liberally to provide protection for employees in both traditional and non-traditional employment relationships, such as where two employees working for two different employers are connected by their common worksite. As we move away from traditional employment relationships towards a more flexible “gig” economy, we expect that this decision will have wide-spread implications for the protection of human rights within BC.


NOT LEGAL ADVICE. Information made available on the Kent Employment Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.

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