Schrenk v BCHRT

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BCPIAC staff lawyers Kate Feeney (left) and Erin Pritchard (center) with Pro Bono counsel Robin Gage at the Supreme Court of Canada on behalf of Retail Action Network.

A Human Rights Win for Service Workers! SCHRENK V BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL

Summary:

Schrenk v British Columbia Human Rights Tribunal is about the scope of human rights protection in your workplace: does the BC Human Rights Code (the Human Rights Code) only apply to workplace harassment when the wrong-doer is your boss or manager? Ultimately, the Supreme Court of Canada confirmed that the Human Rights Code applies to all harassment that is connected to your workplace, regardless of whether the wrong-doer is your boss, your manager, your co-worker, or even a customer.

What was the case about?

The story starts with a human rights complaint by Mohammadreza Sheikhzadeh-Mashgoul against Edward Schrenk. In 2013, Mr. Sheikhzadeh-Mashgoul and Mr. Schrenk worked together on a road improvement project in Delta, BC—Mr. Sheikhzadeh-Mashgoul as a civil engineer and Mr. Schrenk as a foreman. They were each employed by a different contractor on the worksite.

While they were working together, Mr. Schrenk allegedly harassed Mr. Sheikhzadeh-Mashgoul on the basis of religion, place of origin, and sexual orientation. Mr. Sheikhzadeh-Mashgoul immigrated to Canada from Iran and is Muslim.

Mr. Sheikhzadeh-Mashgoul complained about Mr. Schrenk’s conduct to his employer, which ultimately resulted in Mr. Schrenk’s removal from the worksite. However, after his removal, Mr. Schrenk allegedly continued to send Mr. Sheikhzadeh-Mashgoul harassing emails. Mr. Sheikhzadeh-Mashgoul then filed a human rights complaint with the BC Human Rights Tribunal (“the Tribunal”) about Mr. Schrenk’s conduct.

Mr. Schrenk applied to dismiss the human rights complaint against him, arguing that the definition of employment discrimination in the Human Rights Code did not apply to his conduct because he had not had an employment relationship with Mr. Sheikhzadeh-Mashgoul (they had different employers). The question of whether the Human Rights Code applies to Mr. Schrenk’s conduct was appealed all the way up to the Supreme Court of Canada (“SCC”).

What was the legal question before the SCC?

The SCC was asked to interpret the definition of employment discrimination under the Human Rights Code. Mr. Schrenk argued that the Human Rights Code only applies to discrimination against workers by their employers or workplace superiors—in other words, where the wrong-doer is abusing their economic power over the victim. Where a worker is subject to discrimination by someone else in their workplace, Mr. Schrenk argued, it is the responsibility of the employer, not the Tribunal, to intervene.

On the other side, the Tribunal argued that the Code does not stop at protecting employees against clear abuses of economic power (such as the power an employer has over an employee). Rather, in light of the many ways power operates in the workplace, the Code applies to any discriminatory conduct that arises out of the victim’s employment, including discrimination that comes from co-workers, workers with separate employers, clients, and customers.

The Retail Action Network’s role in this case

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The Retail Action Network (“RAN”) intervened at the SCC hearing in support of the Tribunal’s position that the Code broadly protects employees against workplace discrimination. BCPIAC teamed up with Catherine Boies-Parker and Robin Gage, from Underhill, Boies-Parker, Gage and Latimer LLP, to represent RAN in this intervention.

RAN offered a unique perspective by detailing how systemic issues in the service industry make service workers more vulnerable to workplace discrimination—not only by their workplace superiors, but also by their co-workers and customers. These systemic issues include precarious working conditions, customer service norms (“the customer is always right”), the tipping system, gendered and racialized hiring practices, and the sexualization of certain jobs and workplaces.

For more information about precarious working conditions in BC’s service industry, see “Part-time, Poorly paid, Unprotected: Experiences of precarious work in Retail, Food Service, & Hospitality in Victoria, BC.

In particular, RAN asked the SCC to consider the problem of customer harassment in the service industry, arguing that customers are not “mere bystanders” in the service industry. Rather, they wield significant power through tips, which subsidize low service industry wages. Consequently, when it comes to customer harassment, including sexual harassment, workers are vulnerable to facing harassment  as “the price to be paid” for a tip.

A WIN for workers!

In its decision, the SCC confirmed the Tribunal’s position that regardless of the identity of the wrong-doer, the Code protects all employees who experience discriminatory conduct when there is a  sufficient connection to their employment,. In other words, workers may be protected from  discriminatory conduct by co-workers, workers with separate employers, clients, and customers. Factors that help determine whether the discriminatory conduct is sufficiently connected to the victim’s employment include:

  1. Whether the wrong-doer was integral to the victim’s workplace;
  2. Whether the conduct of concern occurred in the victim’s workplace; and
  3. Whether the victim’s work performance or work environment was negatively affected.

RAN is thrilled that the SCC confirmed that the Code protects against customer harassment.

“It’s a significant victory for workers in the service industry who often face harassment not only from employers and co-workers, but also customers. Everyone deserves to work in an environment that is free from discrimination,” said Kaitlyn Matulewicz, an organizer with RAN. 

RAN is also pleased that the SCC used examples from the service industry to support its analysis and decision. The examples highlight the unique ways harassment and discrimination can manifest for service workers. First, when discussing the complex ways power operates in the workplace, the SCC cited the example of how “a regular patron at a restaurant…can exercise economic coercion over a server through tips.” Second, in support of its observation that employees, in their workplaces, “are a captive audience to those who seek to discriminate against them,” the SCC continued:

Whether a server is harassed by the restaurant owner or the bar manager, by a co-worker, or by a regular and valued patron, the server is nonetheless being harassed in a situation from which there is no escape by simply walking further along the street.

RAN looks forward to getting this information out to retail and restaurant workers to ensure they know what their rights are when it comes to workplace harassment. The Retail Action Network will be working alongside legal advocates in the community to support workers who want to challenge workplace harassment using the human rights system.

More on Schrenk v BCHRT

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The Retail Action Network (RAN) is intervening in the appeal of a human rights case in the Supreme Court of Canada. Schrenk v. British Columbia (Human Rights Tribunal) is about the extent to which the BC Human Rights Code (“the ...
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