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“This historic Supreme Court ruling expands protection to workers against harassment and discrimination to include virtually all who are on the worksite. This ruling recognizes the new reality of modern workplaces and recognizes that harassment can come from different sources rather than only direct superiors.” — Larry Brown, NUPGE President
Ottawa (20 December, 2017) — The Supreme Court of Canada (SCC) has ruled that the British Columbia Human Rights Code was correctly interpreted by the BC Human Rights Tribunal when it expanded the understanding of harassment to not only needing to flow from a superior to an employee.
Workers protected from harassment and employment discrimination
The case involved workers on the same worksite who worked for different companies. The original finding of harassment by the BC Human Rights Tribunal was referred to the Supreme Court of Canada when the original ruling was overturned by the British Columbia Court of Appeal.
The British Columbia Court of Appeal ruling sought to narrowly define employment discrimination as only involving a direct employment relationship. The SCC released its ruling on December 15 finding that human rights law prohibits discrimination in the workplace, whether it is perpetuated by an employer or a co-worker, or even if it is perpetuated by someone from a totally separate employer.
Harassment complaint, upheld, overturned and then again upheld
The original complaint before the BC Human Rights Tribunal was filed in 2013 when Mohammadreza Sheikhsadeh-Mashgoul alleged discriminatory behavour in the workplace under Section 13(1)(a) of the BC Human Rights Code which prohibits discrimination against a person “regarding employment."
Mr. Sheikhsadeh-Mashgoul was targeted by Edward Schrenk through emails and comments based on his race, religion and sexual orientation. Both men worked for different contractors on a road construction project which was in the jurisdiction of the Municipality of Delta, British Colombia.
Mr. Schrenk was ultimately removed from the site, and after continuing to engage Mr. Sheikhsadeh-Mashgoul, Mr. Schrenk was terminated. After Mr. Schrenk’s termination, Mr. Sheikhsadeh-Mashgoul filed a complaint with the BC Human Rights Tribunal alleging that his rights has been violated and the Tribunal found in his favour.
Mr. Schrenk appealed the ruling and in Schrenk v. British Columbia Human Rights Tribunal, 2016 BCCA 146, the B.C. Court of Appeal ruled that the Tribunal erred because Mr. Schrenk was not a direct superior or supervisor of Mr. Sheikhsadeh-Mashgoul and this therefore did not constitute discrimination ‘regarding employment’ as outlined under the Code.
New workplace reality recognized by SCC
This Supreme Court's ruling means that all workers have the protection of the human rights code, regardless of whether they work for the same company or not and regardless of whether they are subordinate or superior to others on the worksite.
“This historic Supreme Court ruling expands protection to workers against harassment and discrimination to include virtually all who are on the worksite. This ruling recognizes the new reality of modern workplaces and recognizes that harassment can come from different sources rather than only direct superiors. This says that everyone should be held accountable for their actions," said Larry Brown, President of the National Union of Public and General Employees (NUPGE).
The judges recognized that the nature of work has changed since human rights codes across Canada were written and that the interpretation needed to broaden from one that only recognized harassment and workplace discrimination when it flowed from superior to subordinate and which were marked by an economic power imbalance.
"The SCC ruling understands that harassment does not always flow from superiors and that peer employees or even subordinate employees can also be the perpetrators of harassment. Workers deserve protection even if they are being harassed or discriminated against by an employee who is not associated with their employer," said Brown. "This is a ruling that now applies across the country and all provincial human rights codes will be impacted by this ruling."