SCC Broadens Scope of Workplace Discrimination

The "gig economy" and the 21st century workplaceKrista2

We’ve all heard that work has changed in Canada. One of the biggest shifts is that more Canadians are participating in the “gig economy”, meaning they work on a short-term, part-time, or contract basis for one or more employers or clients. Working in the “gig economy” looks different for different people: some workers are choosing freelance work for the flexibility and rewards of individual entrepreneurship, while for others it is a precarious situation of juggling several part-time “gigs” out of necessity while they search for full-time employment. A December 2017 decision from the Supreme Court of Canada sets a progressive precedent that recognizes this new reality in the context of workplace discrimination and harassment.

A direct employment relationship is no longer necessary for discrimination regarding employment

In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the SCC determined that it is overly limiting to restrict the meaning of discrimination with respect to employment to situations where there is a direct employment relationship, particularly when so many other workplace relationships may be negatively impacted by discriminatory or harassing behaviour. The Court also commented that individual perpetrators of workplace discrimination should be held responsible for their actions. This decision acknowledges that a worker’s employment can be negatively impacted by discrimination from many sources, and that a complainant should be able to bring a human rights complaint against the perpetrator directly, whether the perpetrator is a co-worker, a client, or a contractor who may have a different employer altogether.

How will this decision impact the workplace?Photo

This case could provide human rights complainants with a path to seek compensation in several workplace contexts:

  • A patron may be liable for discrimination against a server, cashier, barista, or other service employee;
  • An entrepreneur or freelancer using a co-working space may be liable for discrimination against a fellow user of that shared space;
  • A courier, client, or other visitor to a workplace or job site may be liable for harassing an employee in that workplace; or
  • A contractor may be liable for harassing another contractor or employee in the workplace.

In the era of the “gig economy” this decision from the Supreme Court of Canada will increase protection for workers in a broad range of fields by placing liability with the person doing the harassing, regardless of whether the complainant and the respondent are in an employment relationship.


Do you have questions about workplace discrimination and harassment?

Krista K. Smith is a partner at Barteaux Durnford and regularly assists employers with day-to-day advice on managing the issue of discrimination and harassment in the workplace, including drafting workplace policies and conducting workplace investigations and assessments for employers. To learn more, contact our firm today.

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