Accommodating the employee of a contractor or subcontractor company
Question: If a contractor's employee working in another company’s workplace requires accommodation specific to the workplace, does the contractor employer have to be involved in the accommodation process?
Answer: Human rights legislation throughout Canada protects all employees from discrimination in employment on protected grounds such as race, sex, sexual orientation and disability. This protection is there regardless of whether the employer is a contractor company who sends its workers to various worksites. This is because the duty to accommodate extends to the terms and conditions of employment, not limited to the immediate premises of the employer. An employee who experiences adverse treatment because of, for example, disability will be entitled to reasonable accommodation on the part of the employer up to the point of undue hardship. Thus, assuming the employer is aware of an employee’s need for accommodation, the employer cannot divorce itself from the accommodation process.
However, this is not to say that the employer is the only party who is prohibited from discriminating against the employee in this setting. In some instances, a third party or collateral person can be a perpetrator of workplace discrimination even if they are not even a party to the employment relationship. Whether or not the host company in the present scenario is subject to the discrimination provisions under human rights legislation will depend on the language of the applicable statute. For example, in Alberta, only employers are expressly prohibited from discriminating in employment in that province’s human rights legislation. Saskatchewan prohibits discrimination by both employees and employers. British Columbia legislation prohibits a “person” from discriminating against another individual “regarding employment.”
It is important to bear in mind that human rights legislation is always interpreted broadly and liberally. Thus, even in Alberta this broad interpretation has resulted in protection from discrimination in employment extending to situations outside of the conventional employment relationship. Independent contractors, subcontractors, volunteers and taxi drivers have been found to be protected by human rights legislation with respect to employment. Recently, the Supreme Court of Canada in British Columbia Human Rights Tribunal v. Schrenk, considered whether the B.C. legislation protected an engineer with a consulting firm from discrimination by a construction contractor and its employee engaged on the same project.
The complainant in Schrenk supervised a number of workers who worked for the construction contractor on the job site. A foreman for the construction contractor made frequent derogatory remarks to the complainant regarding his sexual orientation, place of birth and religion. The complainant raised the foreman’s conduct with his employer, which wisely took steps to address the discrimination and it was agreed that the offending worker be removed from the worksite. Nonetheless, the worker persisted in his misconduct. The complainant eventually brought a human rights complaint against the construction contractor, the foreman, and the municipality who engaged the complainant’s engineering firm on the project. The respondents objected, claiming that the human rights legislation did not apply to them since they were not the complainant’s employer. The Supreme Court of Canada disagreed.
According to the Supreme Court, the B.C. legislation prohibits discrimination that has a “sufficient nexus” to the employment relationship. A sufficient nexus to the employment relationship may exist where: 1) the perpetrator was integral to the complainant’s workplace; 2) the conduct occurred in the complainant’s workplace; and 3) the complainant’s work performance or work environment was negatively affected.
In the present scenario, both the host company and the employer likely have considerable influence over the employee’s work environment. Depending on the situation, the host company may be the only party who can effectively ameliorate the employee’s working conditions by carrying out the actual workplace accommodation. The decision in Schrenk recognizes that there are circumstances where there is only so much that an employer can do to address discrimination in the work environment. However, this does not mean that an employer is relieved of its duties under human rights legislation. Like the complainant’s employer in Schrenk, the contractor employer in the present scenario should do what it can to promote a discrimination-free work environment for its employee.
For more information see:
• British Columbia Human Rights Tribunal v. Schrenk, 2017 CarswellBC 3506 (S.C.C.).
Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or [email protected]