In a recent landmark case involving two men from British Columbia, the Supreme Court of Canada found in favour of a worker who was harassed on his worksite by a contractor from a different company. The ruling was precedent-setting as it determined that as British Columbians go about their jobs, they are entitled to special protection against discrimination in general, not just protection from their employer or individuals with authority over them in the workplace.

To provide some background context behind the ruling, it’s important to know the facts.

• Mashgoul filed a complaint with the Human Rights Tribunal against Mr. Schrenk and Mr. Schrenk’s employer alleging that he had made multiple derogatory statements towards and about Mr. Mashgoul related to his place of origin, religion and sexual orientation.
• The parties were working on the same construction project but for different companies.
• The comments were made to Mr. Mashgoul both verbally and in writing and to other workers.
• While Mr. Schrenk was ultimately fired several months later for his behaviour, Mr. Mashgoul alleged that Mr. Schrenk’s conduct was permitted or tolerated by both Mr. Schrenk’s employer and by the owner of the construction project.

At the heart of the case before the Supreme Court of Canada was this question: could a worker claim workplace discrimination under the BC Human Rights Code after being harassed by someone from a different company. Previous cases had only found discrimination regarding employment where a power imbalance existed between the complainant and a perpetrator within his or her own organization, such as a supervisor or fellow employee. What made this case unique – and precedent-setting – was the fact that Mr. Mashgoul had no employment relationship with either Mr. Schrenk or with Mr. Schrenk’s employer.

The Supreme Court of Canada found that as British Columbians go about their jobs, they are entitled to special protection against discrimination in general, not just protection from their employer or individuals with authority over them in the workplace.

In light of this ruling, when determining what constitutes workplace discrimination, BC courts and the Human Rights Tribunal will – going forward – now conduct a contextual analysis that also takes the following into account:

• Whether the perpetrator was integral to the claimant’s workplace;
• Whether the discriminatory conduct occurred in the claimant’s workplace; and
• Whether the claimant’s work performance or work environment was negatively affected.

What this means is that whether it is a boss discriminating against an employee, employees discriminating against other employees or – such as it was in the Schrenk case – a contractor who is an integral part of the workplace, employees are protected against discrimination in the workplace by the BC Human Rights Code which will be enforced by the Tribunal. With this broader definition, it is possible this protection will continue to extend to other individuals who may be integral to the workplace such as delivery people or even repeat customers.

The Schrenk decision confirms that British Columbian workers may file a complaint with the Human Rights Tribunal against an individual perpetrator – not just against their own employer. This case also affirms that discrimination in employment is broad and contextual. Because of the ruling, employees have protection in the workplace if they’ve have been discriminated against because of a personal characteristic, regardless of the perpetrator.

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