Li­a­bil­ity for dis­crim­i­na­tion may ex­tend to com­pa­nies other than vic­tim’s em­ployer

The lack of a for­mal re­la­tion­ship will be no de­fence to claims, Howard Le­vitt writes.

Calgary Herald - - FINANCIAL POST - Howard Le­vitt is se­nior part­ner of Le­vitt LLP, em­ploy­ment and labour lawyers. He prac­tises em­ploy­ment law in eight prov­inces. The most re­cent of his six books is War Sto­ries from the Work­place: Col­umns by Howard Le­vitt. Twit­ter.com/HowardLe­vit­tLaw

All re­spon­si­ble em­ploy­ers know that they have in­creas­ing obli­ga­tions to their em­ploy­ees. Chief among these — poignantly pub­li­cized by the #MeToo move­ment’s roil­ing of Cana­dian work­places — is the obli­ga­tion to main­tain a work­ing en­vi­ron­ment free from vi­o­lence, ha­rass­ment and dis­crim­i­na­tion.

Hu­man rights tri­bunals have come to loom large in em­ploy­ment, where dis­crim­i­na­tion claims are en­demic. But it may come as a sur­prise to em­ploy­ers and em­ploy­ees alike to learn that, in some cases, li­a­bil­ity for work­place dis­crim­i­na­tion ex­tends be­yond em­ploy­ers and em­ploy­ees and to po­ten­tially al­most ev­ery­one em­ploy­ees must deal with.

Em­ploy­ees them­selves may be li­able for their own dis­crim­i­na­tory con­duct. In British Columbia Hu­man Rights Tri­bunal v. Schrenk, the Supreme Court of Canada re­cently held that this may be so even when the vic­tim works for a dif­fer­ent em­ployer and is in a se­nior po­si­tion to the per­pe­tra­tor.

Mo­ham­madrez Sheikhzadeh-Mash­goul, a Mus­lim Ira­nian im­mi­grant, worked as a su­per­vis­ing en­gi­neer for a firm hired by the B.C. mu­nic­i­pal­ity of Delta. Ed­ward Schrenk worked for Cle­mas, a con­struc­tion com­pany, also hired by Delta for the same project. Due to the struc­ture of this project, Sheikhzadeh-Mash­goul had “sig­nif­i­cant in­flu­ence over how Cle­mas and Schrenk per­formed their work.”

De­spite his ju­nior role, Schrenk tar­geted Sheikhzadeh-Mash­goul with a sus­tained bar­rage of ho­mo­pho­bic and an­tiMus­lim com­ments and con­duct. Sheikhzadeh-Mash­goul raised this with both his em­ployer and Cle­mas, which even­tu­ally dis­missed Schrenk.

Sheikhzadeh-Mash­goul still filed a com­plaint with the B.C. Hu­man Rights Tri­bunal against Schrenk and Cle­mas, who both ar­gued that the tri­bunal could not hear the claim be­cause they were not in any em­ploy­ment re­la­tion­ship with the com­plainant, who worked for an un­re­lated en­gi­neer­ing firm.

The tri­bunal de­cided that it could hear the claim and, although the B.C. Court of Ap­peal dis­agreed, a ma­jor­ity of the Supreme Court agreed with the tri­bunal. The court found that the rel­e­vant sec­tion of the code — “A per­son must not ... dis­crim­i­nate against a per­son re­gard­ing em­ploy­ment” — was broad enough to catch any dis­crim­i­na­tion, more widely de­fined.

The court ruled that it would be “su­per­fi­cial” to say that only an em­ployer and/or su­pe­rior could per­pe­trate work­place dis­crim­i­na­tion. Col­leagues could also be a source of dis­crim­i­na­tion, and a broad view of hu­man rights leg­is­la­tion de­manded that vic­tims be able to bring a claim against a dis­crim­i­na­tory co-worker. This is es­pe­cially so be­cause em­ploy­ees are in a vul­ner­a­ble po­si­tion when it comes to dis­crim­i­na­tion, un­able to sim­ply walk away from an abu­sive col­league. Sheikhzadeh-Mash­goul’s com­plaint against Schrenk and Cle­mas was there­fore al­lowed to pro­ceed be­fore the tri­bunal.

What does this mean for Cana­dian em­ploy­ees and em­ploy­ers? It de­pends on which prov­ince you work in.

Some prov­inces, such as Al­berta, use ex­plicit lan­guage in their hu­man rights law to limit em­ploy­ment-based dis­crim­i­na­tion to acts com­mit­ted by em­ploy­ers or those in a sim­i­lar po­si­tion of power over the em­ployee-vic­tim.

But these prov­inces are in the mi­nor­ity.

As this Supreme Court case arose in B.C., it ob­vi­ously re­flects the law in that prov­ince. Hu­man rights law in Man­i­toba, New Brunswick and Nova Sco­tia all use broad lan­guage sim­i­lar to that found in B.C., so this is cer­tainly good law in those prov­inces as well.

In both On­tario and Saskatchewan, hu­man rights law ex­plic­itly pro­hibits dis­crim­i­na­tion in em­ploy­ment by “an­other em­ployee.” But it is not yet clear whether this ex­tends to an­other em­ployee with a dif­fer­ent em­ployer, as was the case in Sheikhzadeh-Mash­goul’s sit­u­a­tion.

How­ever, the courts have long given hu­man rights leg­is­la­tion a broad and gen­er­ous read­ing so that it ac­com­plishes its lofty pur­poses of iden­ti­fy­ing and elim­i­nat­ing dis­crim­i­na­tion. Ac­cord­ingly, the scope of the law in these two prov­inces may be ex­panded by the Supreme Court’s rul­ing, though that will not be cer­tain un­til cases on the point are de­cided.

What is clear is that, in these prov­inces, em­ploy­ers and em­ploy­ees must be es­pe­cially vig­i­lant to­wards work­place mis­con­duct.

Em­ploy­ees and em­ploy­ers should act proac­tively when they be­come aware of dis­crim­i­na­tion in the work­place, as fail­ure to do so will have far-reach­ing con­se­quences, fi­nan­cially and rep­u­ta­tion­ally.

Em­ploy­ees will not be in­su­lated from the con­se­quences of their dis­crim­i­na­tory con­duct, nor will they be able to sim­ply pass li­a­bil­ity onto an em­ployer that has stood idly by while dis­crim­i­na­tion oc­curred.

And em­ploy­ers may not be able to es­cape li­a­bil­ity be­cause their em­ployee tar­geted some­body with a dif­fer­ent em­ployer. The Supreme Court has made clear that, de­pend­ing on the ar­range­ment of the work, the lack of a for­mal em­ploy­ment re­la­tion­ship will be no de­fence to a claim of dis­crim­i­na­tion in em­ploy­ment.

GETTY IM­AGES/IS­TOCK­PHOTO

The court ruled in favour of a broad view of hu­man rights leg­is­la­tion for work­place ha­rass­ment and dis­crim­i­na­tion.

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