Supreme Court decision will impact BC workers facing discrimination and harassment

By Daniel Tseghay

The Tyee recently ran a series on the experiences of retail, food and beverage, and hospitality workers, and their experiences of harassment on the job. One of the articles, “Slaps, Gropes and Comments ‘Non-stop’” by Rachel Sanders, noted that 80 per cent of food and beverage servers are women and they experience consistent acts of sexual harassment by their customers. Many of the stories revealed complicity on the part of employers:

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Photo by Sasha Whittaker via Retail Action Network Facebook page

“He said, ‘Well you knew what you were asking for when you decided to work here. You knew what you were going to have to wear and the attention you were going to get. You signed up for that. That’s your problem.’” (A server named Laura is quoted as saying in the article.)

BC researchers have noted that the practice of tipping, which is common in the service industry, compels many workers to put up with harassment since what they earn depends on their customers. And since 2011, when the province established a lower minimum wage for liquor servers, workers in those industries have become even more dependent on tips.

Near the end of last month, the Supreme Court of Canada heard a case, Schrenk v. British Columbia (Human Rights Tribunal), regarding worker rights. It stemmed from a decision by the British Columbia Court of Appeal to limit the BC Human Rights Tribunal’s ability to hear cases involving workplace discrimination that wasn’t initiated by someone “in a position of economic authority”.

The current anti-discrimination law doesn’t protect workers from discrimination and harassment by co-workers or customers. The decision also absolves the employer of their responsibility to create an atmosphere in the workplace which prevents such experiences for workers.

If the Supreme Court of Canada deems the decision lawful, workers in such situations will be unable to address them under BC’s Human Rights Code. People like Laura, from The Tyee report, would not have their case heard even though it’s clear that, in many instances, their superiors were complicit and could do more to prevent those experiences.

The outcome of this case is particularly important for workers in the retail sector, since many experience instances of harassment from not only from their employers, but customers as well.

This is why Victoria-based workers’ rights organization, Retail Action Network (RAN), is intervening in the case. RAN, which represents non-unionized retail, food service, and hospitality workers, is supported by the BC Public Interest Advocacy Centre (BCPIAC) and lawyers from Underhill, Boies-Parker, Gage, & Latimer LLP in this case.

According to Gabrielle Grant, a Law Student Volunteer with RAN, in an interview with Rankandfile.ca, the British Columbia Court of Appeal is basing their decision on a limited reading of Section 13 of the BC Human Rights Code which doesn’t reflect the precedents. “The leading case law says it’s the employer’s responsibility, and that they are liable if they fail to do this, to make sure the workplace is free of discrimination,” says Grant.

RAN’s argument. which can be found here, is that the interpretation of Section 13 must be expanded, and that discrimination or harassment must be understood structurally.

“When discriminatory harassment is understood as a systemic and structural problem – rather than simply the outgrowth of an individual employment relationship gone wrong – its source becomes less important than its effects,” reads RAN’s argument. “This approach represents a shift in emphasis from the position and characteristics of the respondent to those of the complainant. A complainant-centred perspective primarily concerns itself with the complainant’s social and economic vulnerabilities within the institutional environment, as well as the complainant’s lived experience of the “subtleties, harms, fears, threats, and realities of harassment.” It recognizes that the relationships and hierarchies within workplaces that can render workers vulnerable to harassment may be much more nuanced and complex than would be seen on any organizational chart.”

With RAN’s intervention in this decision, and their capacity to provide the perspectives of workers who are especially confronted by these more nuanced forms of harassment, there’s some hope that the Supreme Court will challenge the decision. And if so, it would likely mean real improvement for all workers.

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