When Workplace Discrimination is Not Illegal: Schrenk v. British Columbia

The British Columbia Human Rights Code mandates the BC Human Rights Tribunal to prevent and provide redress to discrimination in areas such as tenancy, services and employment. In recognition of its important public purpose, this Code has long attracted a large and liberal interpretation of its mandate.

No where is this “large and liberal” interpretation of the law more evident than in the employment context, where an “employer” has been held to include at times supervisors, contractors, unions, trade groups, significant customers or any other organization that occupies a position of power and can dictate conditions of employment.

Recently, the British Columbia Court of Appeal in Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146 had a look at this large and liberal interpretation of the law from a slightly different context: whether discrimination in the workplace that does not flow from a position of power or authority is covered by the Human Rights Code?  To many, the Court’s answer was surprising.

Facts

The Municipality of Delta was performing road improvements. As part of the project, they engaged a number of contractors, including Clemas Contracting Ltd. and Omega and Associates Engineering. Omega was engaged as the contract administrator of the project, and had oversight over the contract work performed by Clemas.

The appellant, Mr. Schrenk, was a site foreman for Clemas. The complainant, Mr. Sheikhzadeh-Mashgoul was the site representative for Omega and provided oversight to Clemas, and therefore also to Mr. Schrenk. Over the course of the project, Mr. Schrenk allegedly made a number of repeated and highly derogatory statements to Mr. Mashgoul and others about Mr. Mashgoul’s sexual orientation, religion and place of birth.

Ultimately, Mr. Mashgoul complained to Omega and Clemas, with the result that Mr. Schrenk’s employment was terminated. Even following termination, Mr. Schrenk continued to send derogatory emails to Mr. Mashgoul . The facts of the case were not materially in dispute.

Schrenk diagram (00606803xD7EDD)

Judicial History

Ultimately Mr. Mashgoul filed a complaint with the BC Human Rights Tribunal alleging that Mr. Schrenk and Clemas discriminated against him regarding employment. Counsel for Clemas and Mr. Schrenk quickly filed an application to dismiss the complaint, arguing that the Tribunal lacked jurisdiction and that there was not a relationship of employment between Mr. Mashgoul and the respondents.

In its decision, the BCHRT rejected this argument, noting that “it would be unduly artificial and not in keeping with the broad public policy purposes of the Code to exclude employees on a construction site from the protections mandated by s. 13 simply because the alleged perpetrator of discriminatory behaviour worked for another employer on that site.”

The Tribunal went on to note that “the fact that Mr. Sheikzadeh-Mashgoul, in his job relating to quality control, had significant influence over the way Clemas and Mr. Schrenk performed their work, does not in any way diminish the Tribunal’s jurisdiction over a complaint that an individual was negatively discriminated against in the course of his employment on the basis of religion, place of origin and sexual orientation.”

The case eventually found its way to the BC Court of Appeal, where the Court was ceased with one question: whether the allegations were about conduct that might amount to discrimination “regarding employment”?

The Decision

In accepting the appeal and ultimately dismissing the human rights complaint, the Court found that the Human Rights Tribunal engaged in an inappropriate analysis in considering whether the discrimination occurred “in relation to employment”.  To this end, the Court cautioned that the Tribunal should not take such an expansive view of human rights protections so as to act outside of the sphere enacted by the legislature.

Expanding on this idea, the Court found that protections from discrimination in the Code require a position of authority or power in order to take effect:

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 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.

Essentially, discrimination in the workplace is not the same as discrimination regarding employment. In dismissing the complaint, the Court found that Mr. Mashgoul was in a position of authority to Mr. Schrenk, and that therefore Mr. Schrenk’s alleged discriminatory conduct could not be said to have occurred in a context “regarding employment”. In order for a claim of discrimination to be valid, it must generally flow downwards from a position of authority to a position of subordination, which was not the case.

Conclusions

I do not fully agree with the Court’s analysis in this matter. The notion that a supervisor can impose conditions of employment on a subordinate but that a subordinate cannot impose conditions on a superior seems legalistic and artificial, and appears to be based on an outdated view of the “master and servant” relationship. One only needs to think of cases of “upward bullying” (where a supervisor or manager is bullied by one or more subordinates) to appreciate that workplace violence flows up and down the org-chart. Further, today’s jobs are far more fluid than those of yesterday, and traditional models of corporate hierarchy are being replaced. It begs the question whether someone working in a tech company with a horizontal HR model (versus a vertical or pyramid model) will have the some opportunities for recourse if there are few or no lines of authority.

Personally, I am more partial to the reasoning provided in the decision of the Human Rights Tribunal. In citing the Supreme Court of Canada:

The Code is quasi-constitutional legislation that attracts a generous interpretation to permit the achievement of its broad public purposes […]. Those purposes include the prevention of arbitrary disadvantage or exclusion based on enumerated grounds, so that individuals deemed to be vulnerable by virtue of a group characteristic can be protected from discrimination.

The Code achieves those purposes by prohibiting discrimination in specific contexts. One of those contexts is “employment”. The definition of employment must be approached consistently with the generous, aspirational purposes set out in s. 3 of the Code and understood in light of the protective nature of human rights legislation, which is “often the final refuge of the disadvantaged and the disenfranchised” and of “the most vulnerable members of society” […]. This is the philosophical framework for ascertaining whether a particular workplace relationship represents the kind of vulnerability the Code intended to bring under its protective scope.

I agree. The Code is designed to protect vulnerable people from arbitrary disadvantage. Just because you’re a boss, does not mean you are not vulnerable, and this fact alone should not prevent recourse provided under the law.

I expect we have not seen the last of this issue.

 

David M. Brown
Kent Employment Law
236-420-1946
david@kentemploymentlaw.com
LinkedIn: https://ca.linkedin.com/in/davidmjbrown
Twitter: @davidmjbrown

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