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Digest of the Week | Discrimination by Co-Workers

Discrimination in the workplace includes that perpetrated by co-workers with different employers and is not limited to the complainant’s employer or superior

British Columbia Human Rights Tribunal v Schrenk | 2017 SCC 62 | Supreme Court of Canada

Human rights — What constitutes discrimination — Sex — Sexual orientation — Employment

Complainant was civil engineer who was subjected to derogatory comments and emails regarding his place of origin, religion and sexual orientation from co-worker who worked for another employer on same construction site — Complainant filed complaint with British Columbia Human Rights Tribunal alleging discrimination contrary to s. 13(1)(b) of Human Rights Code — Co-worker and CC Ltd. unsuccessfully brought application to dismiss on basis of lack of jurisdiction, submitting that complainant was not in employment relationship with them — Co-worker unsuccessfully brought application for judicial review — Co-worker appealed, which was allowed on basis that s. 13(1)(b) was not so wide as to encompass conduct by any person that might have adversely affected employee in their employment — Tribunal appealed — Appeal allowed — Section 13(1)(b) of Code was not limited to protecting employees solely from discriminatory harassment by their superiors in workplace — While discrimination by one's employer was particularly insidious in that it exploited economic power imbalance, other forms of conduct could amount to discrimination "regarding employment" in absence of such economic power — In determining whether discriminatory conduct had sufficient nexus to employment context, Tribunal must conduct contextual analysis that considered all relevant circumstances — Co-worker's discriminatory behaviour had detrimental impact on workplace because it forced complainant to contend with repeated affronts to his dignity, which amounted to discrimination regarding employment as it was perpetrated against employee by someone integral to his employment context.
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