The British Columbia Human Rights Tribunal (BCHRT) has recently released a decision pertaining to a case of workplace discrimination. Even though this decision came out of British Columbia, it could apply anywhere in Canada, including Ontario. In the decision, an employer was alleged to have made inappropriate comments toward his employee. The BCHRT decided in favour of the employee. Let’s examine why.

Employer Repeatedly Called Employee ‘Beautiful’

The employee applied for the position of account manager at the company. She was interviewed by the owner of the company and by her supervisor, who was the owner’s daughter during two different times. The employee met the owner during the second interview. The employee alleged that during this interview the owner asked her about her “marital status” and plans to have children. The employee was hired as an accounts manager in charge of sales.

This was the employee’s first job in sales. She made significantly fewer sales than her colleagues and this was a source of stress. First, the employee needed the money from the commission. Secondly, the company put pressure on her to make more sales. Regardless, the employee claimed that her supervisor repeatedly assured her about her performance. However, the employee claimed she had a different experience with the owner.

The employee alleged that the owner was “volatile” and difficult to work with. The employee also alleged that the owner frequently commented on her appearance and thereby demeaned her. She also claimed that the owner began calling her “beautiful lady” or “beautiful girl” instead of calling her by her name. She claimed this continued for the first six or seven months of her employment. Eventually, the employee told the supervisor about her allegations. The supervisor arranged a meeting between the owner and the employee. The owner accused the employee of defaming him and asked her to sign a statement affirming that he had not physically assaulted her. A day after the meeting, the employee was fired.

Thirteen months after the employee was hired, she was fired. The employee brought a complaint of discrimination based on her sex, in violation of s. 13 of the British Columbia Human Rights Code (Code) against the employer.

The BCHRT Found Discrimination on the Basis of Sex

The tribunal found that the owner did make some comments to the employee about her appearance. However, the tribunal also found that it was not to the extent that she alleged. While it was accepted that the owner occasionally called the employee “beautiful girl” or “beautiful lady”, and told her to smile, those comments were found not to have been made as frequently as the employee claimed.

The tribunal rejected the employee’s allegations that the owner made a bikini comment. The tribunal also rejected the employee’s allegation that the owner had hired her for her appearance. The tribunal concluded that the employee had overstated these allegations. The tribunal found she had done so to bring her complaint more squarely within the jurisdiction of the Human Rights Tribunal’s purview.

The tribunal concluded that the owner had discriminated against the employee in her employment when he occasionally called her “beautiful girl” or “beautiful lady” and commented that she should smile more.

Discrimination in Termination and Retaliation

The tribunal also found that the employee had suffered discrimination in being terminated.

After the employee broached the subject of sexual harassment, the top priority became protecting the owner and the company. A day after the termination, the supervisor pushed to have the employee sign a document stating that she had falsified her allegations against the owner and warning her that she may be subject to a lawsuit for defamation. The supervisor’s explicit agenda at that point was to secure “protection” for the owner and the company. It was not possible to separate that agenda from the decision to terminate the employee’s employment.

Accordingly, it was found the supervisor had a clear agenda to protect the owner and his company, given the timing of the termination. These factors, understood in the context of the case as a whole, supported the finding that the employee’s complaint of sexual harassment, and therefore her sex, was a factor in her termination. The tribunal concluded that this was discrimination, in violation of s. 13 of the Code.

The tribunal also found that the company, the owner and the supervisor were in violation of s. 43 of the Code. To satisfy s. 43, the employee was able to establish that:

• The owner and supervisor were aware that the employee might make a complaint under the Code;
• The owner and supervisor terminated her employment; and
• There was a sufficient connection between her termination and the prospect that she may file a complaint.

Given all these findings, the tribunal awarded the employee $20,000 for injury to her dignity, feelings and self-respect.

The bottom line is this; employers should be aware of human rights legislation in their province that concerns the treatment of employees. Furthermore, employers should have strong workplace human rights policies in place to prevent the occurrence of workplace harassment and discrimination.

For advice on employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.