Businesses and their owners are well aware of the obligation to provide a working environment where their employees are free from discrimination and harassment. This obligation has increasingly been in the public spotlight of late given the revelations of inappropriate behaviour of numerous high-profile people. But how far does this obligation extend in the workplace?
This edition of The Battlefront reviews a recent Supreme Court of Canada decision regarding the obligation of businesses to protect their employees from harassment in the workplace, even by individuals who are not employees of the business.
The Employer was an engineering company in British Columbia retained on a road improvement project. In addition to its own employees, the Employer also supervised the employees of another Contractor on the project. An employee of a Contractor made various and ongoing racist and homophobic statements to one of the Employer’s employees. Upon a complaint by the Employee, the Employer required the Contractor to remove the Perpetrator from the work site. However, after removal from the site, the Perpetrator remained involved in the project. The harassment continued, and the Contractor eventually terminated the Perpetrator’s employment.
The Employee launched a human rights complaint against the Perpetrator and the Contractor alleging discrimination. The Perpetrator attempted to have the complaint dismissed on the grounds that the Perpetrator and the Employee were not in an employment relationship, i.e. the Perpetrator was not the employer or a person for whom the employer was responsible. The Employee worked for the Employer and the Perpetrator worked for the Contractor. The attempt to dismiss was not successful at trial, but was successful at the Court of Appeal. However, on further appeal, the Supreme Court of Canada held that the British Columbia Human Rights Code protects employees from discrimination within the employment context, regardless of the employment status of the perpetrator. This broadens the view to include co-workers with different employers.
Although this case arose in British Columbia, the Supreme Court has established that Canadian courts are to take a contextual approach in determining whether conduct amounts to discrimination in the workplace. No bright line rule was provided to give certainty to employers. Instead courts will conduct a careful review of the facts and circumstances of each situation. The focus will be on who can suffer discrimination, rather than who can perpetrate it.
This approach will shift the framework for determining claims of discrimination or harassment. Rather than considering the work factors that an employer can control, the perspective will be on the factors that the employee experiences in the work environment. Factors may include: (1) was the perpetrator integral to the workplace?; (2) did the conduct occur in the workplace?; and (3) was the employee’s work performance or work environment negatively affected? This is not a complete list as courts have the discretion to consider other factors may also contribute to discrimination or harassment.
The Risk in Ontario
The Ontario Human Rights Code has slightly different language than the equivalent in British Columbia. The Ontario statute states that every employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee. However, if an Employer engages a sub-contracting company and has supervisory authority over the employees of the sub-contractor, this may result in the employees of the sub-contractor being seen as “agents of the employer”. An Employer allowing contractors to work in their environment likely would also attract liability for the collateral actions of these contractors, particularly for workplace discrimination. The Supreme Court has established a contextual analysis of discrimination claims and has significantly broadened the scope of factors that may be considered.
Thoughts to Take Away
Canadian courts are prepared to look at the entire working environment from the perspective of the employees when considering a claim of discrimination or harassment. The hierarchical view of what an employer can, or cannot, control is no longer the acceptable approach in determining discrimination. Rather the focus must be on what the employee experiences in the work environment.
To be cautious, employers must take reasonable measures to ensure that its employees are not a captive audience to discrimination, regardless of the identity or employment status of the perpetrator. Employers must have procedures in place to be informed of their work environment and educate all people working therein. Employers can no longer limit their perspective to a hierarchical view of what they control.
This change in focus mirrors the trends in the workplace. Canadian businesses are increasingly moving towards outsourcing and sub-contracting. This court decision is consistent with the reality where employers are increasingly contracting third party service providers who place their employees into the work environment. Employees are exposed to non-employees on a regular basis as an integral part of their employment. This creates, and heightens, the risk of discrimination or harassment as employees from multiple employers work together.
The view of discrimination cannot be a hierarchical view of workplace structure, i.e. only superiors can perpetrate discrimination. The focus cannot be on who can perpetrate discrimination, but who can suffer discrimination in the workplace. Outsourcing and sub-contracting may be a cost-effective approach to profitable businesses, but collateral harassment may mean collateral risk!
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About The Battlefront
This article contains general information only. The Battlefront is a brief canvasing of the topic presented and should not be relied upon as professional advice in making any personal or business decisions. Always consult with a licenced legal professional before making any decisions regarding your own personal or business needs. The author takes no responsibility to update any of the information presented in this article. All rights reserved. © Loopstra Nixon LLP 2017