In a decision that underscores the complexities of modern workplaces and the vulnerability of workers to many forms of discrimination, the Supreme Court of Canada has confirmed a broad jurisdiction of the BC Human Rights Tribunal to meaningfully address workplace harassment and discrimination.
The majority of the Court overturned a decision of the BC Court of Appeal, which had restricted the jurisdiction of the Tribunal to circumstances in which the perpetrator was in a position of economic power over the complainant. In his decision Rowe J, writing for the majority, held that this approach "fails to capture the reality of how power is exercised in the workplace". The majority also recognized that "economics is only one axis along which power is exercised", noting that gendered and racialized power, for example, can be the basis for equally harmful exploitation of marginalized groups.
Finally, the majority noted that workers are particularly vulnerable to discrimination in the employment context, as they are "a captive audience for those who seek to discriminate against them ... 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."
For all of these reasons, the Majority adopted a contextual approach to determining the scope of protection for workplace harassment.
Robin Gage and Catherine Boies Parker, together with our colleagues at BC PIAC, represented the intervenors, the Retail Action Network (RAN) in the Supreme Court of Canada. RAN is a Victoria-based grass-roots organization that represents and advocates for the rights of vulnerable workers in the Retail, Food Service, and Hospitality Industries.
The decision can be found here: BC Human Rights Tribunal v. Schrenk