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SCC Decision re: Human Rights covers Discrimination with Nexus to Employment

Dec 22, 2017

Employers Responsible for Discrimination Against Employees Whenever Discrimination has Sufficient Nexus with the Employment Context

In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the Supreme Court of Canada has ruled human rights protections are not limited to prohibiting discriminatory harassment solely by superiors, but rather prohibits discrimination against employees whenever discrimination has a sufficient nexus with an employment context. This may include discrimination by co-workers, even if those with different employers.

The Meaning of “Regarding Employment” and “Sufficient Nexus” to Employment

At issue in this case was if discrimination “regarding employment” could be perpetrated by someone other than an employer. The Court found the term “regarding employment” did not solely prohibit discrimination in hierarchical workplace relationships, like with superiors. Rather, under the Human Rights Code discrimination was prohibited by any “person”, which “encompasses a broader range of actors that merely any person with economic authority” over a complainant (para 34).

The Court found employees are vulnerable vis-à-vis others at work, such as harassing co-workers, not just their employers. Human rights protections extend to all employees who suffer discriminator with a sufficient connection to their employment. Whether or not the conduct has a sufficient nexus with an employment context is a contextual analysis. The non-exhaustive list of factors below may inform such an analysis:

  • Whether the respondent was integral to the claimant’s workplace;
  • Whether the conduct occurred in the claimant’s workplace; and
  • Whether the claimant’s work performance or work environment was negatively affected (para 67).

While a person in control of the complainant’s employment may be primarily responsible for prohibiting discrimination, others are also responsible for ensuring workplaces are discrimination-free. Individual perpetrators may be held accountable by claims naming them personally, particularly when discriminatory conduct persists despite an employer taking all possible actions to stop the conduct.

Why This Case is Important

This case holds lessons for employers and individual employees. Organizations need to be aware that they can be found responsible for discriminatory conduct among co-workers, even when that conduct is caused by another organization’s employees. Employees should also be aware they are not without liability for discriminatory behavior simply because they do not share a common employer with the victim. We are all responsible for ensuring discrimination-free workplaces.

Lyndsay MacDonald is an associate with HR Atlantic Law.

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