When working with independent contractors or the self-employed, companies should be aware that the Human Rights Code protections may still apply. A recent decision of the Human Rights Tribunal reiterates the fact that discrimination and harassment can be found “with respect to employment” even in the absence of a traditional employer-employee relationship.
The decision dealt with the application of a self-employed commission salesperson who worked under the supervision of a man who was the broker of record at the brokerage firm that the saleperson worked at. The salesperson alleged that she was harassed by the supervisor, beginning at a holiday party, and following with many inappropriate comments and unwanted physical approaches the next year. She confronted him, and eventually resigned.
The tribunal found that even when a relationship is considered one of self-employment or independent contractor for taxation or other legislative purposes, human rights statutes should be given a fair, large, and liberal interpretation to fulfill their purpose. As such, the salesperson was entitled to the protections of the Human Rights Code that were laid out “with respect to employment”, including protection against sexual harassment. The fact that she could have worked out of any brokerage was not decisive, given that she was in fact only working exclusively for the one brokerage under the supervision of the broker of record.
This decision reinforces that while a person may not be considered an employee for some purposes (such as taxation), they may still be entitled to other employee rights like those provided by human rights statutes.
Written with the assistance of Kira Misiewicz, articling student.