Stuttering in the Workplace: To Whom does Human Rights Legislation Apply?
In this Article, we are addressing the issue of the scope of applicability of human rights legislation in the workplace arising out of the Supreme Court of Canada’s decision in BC Human Rights Tribunal v. Schrenk (2017 SCC 62).
First, we need to examine the modern workplace. Most people work for one employer in traditional employment contracts. However, there is not always so. Consider, as a simple example, construction sites. There is a general contractor who oversees the project, but they hire subcontractors who attend the site to perform specific tasks.
Another example would be a manufacturing facility, like a General Motors or Ford vehicle assembly plant. The company employs workers to assemble vehicles on an assembly line. However, third parties are present in the plant: drivers for transportation companies that deliver subassembly (or premade) parts for use on the assembly line, or the food services company that operates and staffs the cafeteria.
As a third example, some retail companies (e.g., Shoppers Drug Mart or Home Depot) may require suppliers to deliver and re-stock their product at the store(s). These persons would not work for the retail company itself but would be employees of the supplier or possibly dependent or independent contractors.
The foregoing shows us that in the modern workplace, there may be different employees or types of employees in a particular workplace. This leads us to Schrenk, below are the facts:
- Mohammadreza Sheikhzadeh-Mashgoul [MSS] worked for Omega and Associates Engineering Ltd. on a construction project.
- Omega had certain supervisory powers over employees of Clemas Construction Ltd [CC], the primary contractor.
- CC employed Schrenk [S] as Site Foreman and Superintendent.
S made racist and homophobic statements to MSS on the worksite. - MSS raised the comments with Omega and Associates Engineering Ltd., who asked CC to remove S from the site.
- CC complied but S continued to be involved on the project and harass MSS.
- CC eventually terminated S’s employment.
- MSS filed a complaint before the BC Human Rights Tribunal against S, alleging discrimination based on religion, place of origin, and sexual orientation.
- S applied to dismiss MSS’ complaint, arguing that section 13 of BCs Human Rights Code (Code) had no application because S was not in an employment relationship with MSS.
- The BC Human Rights Tribunal held it had jurisdiction to deal with the complaint and denied S’s application.
In a split decision, the Supreme Court agreed with the Tribunal, affirming that the scope of s.13(1)(b) Code was not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace. Considering the specific language of the British Columbia Human Rights Code, the Court noted that section 13(1)(b) did not restrict who can perpetuate discrimination. Rather, it defines who can suffer employment discrimination. In this way, it prohibited discriminatory conduct.
If you are thinking: How does this impact me as a Person Who Stutters (PWS)? Good question. In my view, Schrenk stands for the position that in the modern employment world, human rights legislation can apply to non-traditional employment relationships.
The emphasis should include the purpose of human rights legislation, not just the particular words in the type of legislation. Remember from my previous article on Stuttering, Disability and Discrimination, that human rights legislation is given a generous interpretation: broad, purposive, and contextual to advance the goal of eliminating discrimination.
In consideration of the foregoing, and starting from the position that:
- Stuttering is a disability;
- A PWS is a person with a disability; and
- Their disability is a protected characteristic that is cloaked with protection against discrimination by human rights legislation;
then Schrenk provides (in my view) that PWS are, or ought, to be protected from discrimination related to or associated with their employment, including humiliating and degrading harassment in the workplace. This is regardless of whether the “offender” (person performing the discriminatory acts) occupies a position of authority over the employee or is directly employed by the employer.
Put another way, I propose your employer is responsible for their workplace, which includes providing an environment free of harassment and discrimination for all. This includes addressing the conduct of other persons who may not have an employment-relationship with your employer.
Please look for my next Article in December 2024. For those of you attending the CSA’s 2024 Conference, Connecter les voix - Connecting Voices, in beautiful Montreal [also where I attended law school 😊 ], on November 8-10, 2024, I will see you there! I hope you can attend my presentation on Stuttering, Accommodation and Human Rights in the Workplace that includes Accommodation Best Practices.
If there a particular employment topic or issue that you would like me to address in a future article, let me know! You can reach me at: mathew.yaworski@stutter.ca All correspondence will be treated as confidential.
Disclaimer: The opinions and statements in this article are solely the author’s and do not represent the Government of Canada or the Department of Justice Canada. Nothing in this article should be construed or relied upon as legal advice or opinion.