Expanding rights protection at work a vital task

Fighting discrimination a job for all, says Bethany Hastie.

The Supreme Court of Canada last month released its decision in a case concerning the scope of protection against employment discrimination under the B.C. Human Rights Code, and in particular, whether the code captures relationships outside of the employer/ employee relationship.

In B.C. Human Rights Tribunal v Schrenk, the majority of the Supreme Court of Canada adopted an expansive interpretation of employment discrimination not limited to the employer/ employee relationship or to relationships based on economic power imbalances. As a result, this decision advances meaningful protection against discrimination in the contemporary workplace, which increasingly involves complex chains of actors and contractors outside of the historical employer/employee relationship. It further acknowledges that while a relationship of economic power imbalance continues to bear relevance in understanding situations of employment discrimination, economic power is not the only factor in defining both who may perpetrate discrimination, and who may be impacted by it. Finally, it affirms the collective responsibility and importance of human rights, at work and in Canadian society.

The original complainant in the human rights case was Mohammadreza Sheikhzadeh-Mashgoul, a civil engineer working on a construction project in Delta. He filed a human rights complaint against Edward Schrenk, who was the site foreman and superintendent on the project, but employed by another company. As such, Schrenk was not in a formal supervisory relationship over Sheikhzadeh-Mashgoul, nor did he hold a position of direct economic power over Sheikhzadeh-Mashgoul. Rather, as in many workplaces today, Schrenk and Sheikhzadeh-Mashgoul had no legal relationship in respect of their employment, despite the fact that they worked alongside each other. A core issue in the matter thus revolved around whether Schrenk’s status, and his relationship (or lack thereof ) to Sheikhzadeh-Mashgoul, fell within the ambit of s. 13 of the B.C. Human Rights Code, which prohibits discrimination in respect of employment.

An important objective of s. 13 is to protect employees from “the indignity of discriminatory conduct in the workplace. In this way, it prohibits discriminatory conduct that targets employees so long as that conduct has a sufficient nexus to the employment relationship.” From this perspective, it makes little sense to limit that protection to hierarchical employment relationships. This carries all the more force given many contemporary workplaces are made up of complex non-standard employment relationships.

The expansion of protection for employment discrimination may cause concerns about the extent to which this will impact the contemporary workplace and daily life. However, the court maintains important boundaries around the scope of employment discrimination in Schrenk, while also signalling the importance of shared responsibility for advancing equality and belonging at work and in Canadian society.

First, the majority continues to place boundaries on the scope of human rights law and employment discrimination, shifting the focus from technical, relationship-based categorization toward a more contextual understanding of discrimination in the workplace. To that end, the majority highlights that a “sufficient nexus” between discrimination and employment might exist where the perpetrator is an “integral and unavoidable” part of the complainant’s work environment. This maintains boundaries on claims regarding employment discrimination, while emphasizing the workplace context over the technical relationship in question.

Second, a fundamental purpose of human rights law is to protect individuals from discrimination in contexts that are integral to their participation and life in a community, such as in relation to employment, housing, and education. Human rights law seeks to advance equality for marginalized groups, and to remove economic, cultural and social barriers to inclusion. In the employment setting, continuing to limit the application of human rights law only to employers undermines these fundamental objectives, and could provide immunity to actors that perpetrate discrimination in the workplace, as the majority noted would be a consequence of the case before it were it to adopt such a narrow interpretation. It is important that human rights are understood as a collective endeavour, and a collective responsibility. The Supreme Court of Canada’s decision in Schrenk takes an important step toward such an understanding.