April 7, 2016

Not All Workplace Discrimination is Protected Under the Human Rights Code

Section 13 of the Human Rights Code (the “Code”) protects individuals from discrimination regarding employment. A recent decision out of British Columbia’s Court of Appeal has clarified not all discrimination which occurs at the workplace is necessarily discrimination “regarding employment” for the purposes of the Code.
In Schrenk v. British Columbia Human Rights Tribunal, 2016 BCCA 146 (“Schrenk”) the Complainant was a civil engineer working for a consulting firm on a road improvement project.  In this capacity he supervised workers on the site, including one particular worker who repetitively made derogatory comments to the Complainant regarding his place of birth, religion, and sexual orientation.  For all practical purposes the Complainant was the supervisor of the individual whom he claimed had discriminated against him in the workplace.  Following complaints made by the consulting firm the Complainant represented, the worker whom had made the offensive remarks was dismissed from his employment.
The question faced by the British Columbia Court of Appeal was whether any discriminatory conduct within the workplace is necessarily “regarding employment” and protected under the Code.  The Court of Appeal answered this question with a resounding no.  The Court of Appeal reasoned that not all insults inflicted upon employees, even in the course of their employment, amount to discrimination regarding employment. Such insults can only amount to discrimination if the wrongdoer has the authority to impose the conduct on the discriminated as a condition of their employment, or if the wrongdoing is known to and tolerated by an employer.
In Schrenk, the Court of Appeal found, the Complainant was, for all practical purposes, the supervisor of the worker whom had engaged in the discriminatory behaviour.  The offending worker had no authority to inflict his discriminatory conduct upon the Complainant as a condition of the Complainant’s employment.  The Court of Appeal determined, on this basis, the Tribunal was without the jurisdiction to address a complaint made against a person who is “rude, insulting or insufferable but who is not in a position to force the complainant to endure that conduct as a condition of his employment”.
Employers should be advised, however, that where they become aware of discriminatory behavior on their worksite they have a responsibility to address it, regardless of the position or authority of the individuals involved.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
For more information on new developments in Workplace Law, please refer to our website at:  https://mathewsdinsdale.com/news-events/in-a-flash/
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