Every person has a right to equal treatment with respect to employment without discrimination on the basis of protected grounds, including race, sex and disability. This protection covers every aspect of the employment relationship, from recruitment through dismissal.
This article looks at two recent decisions by human rights tribunals, both of which found that employees had been discriminated against by their employers. The decisions by the Human Rights Tribunal of Ontario and Canadian Human Rights Tribunal offer a reminder to employers about the seriousness of such claims and subsequent implications that can result, including significant damages awards. These cases also highlight an alternative forum for employees to bring such complaints outside of the court system.
Employee alleged abusive pattern of discriminatory and harassing conduct
In A.B. v C.D., the applicant employee began working for the respondent employer and his company in 2007. The employee resigned for the second and final time in 2014. The employee applied to the HRTO claiming that her employer had engaged in sex discrimination and harassment.
While the employee acknowledged that her employer was generous at times, such as when he offered to help her buy a home, she alleged that he subjected her to an abusive and discriminatory pattern of conduct over many years.
The employee recalled a variety of incidents where she described the conduct of the employer, for example, disparaging her appearance and weight, making comments about her abusive marriage, calling her derogatory names, telling her to put her hand up to ask to go the bathroom and watching a pornographic movie with another employee.
Tribunal found employee was a victim of sex discrimination and sexual harassment
The employer did not specifically deny these allegations, instead he stated that the employee’s stress resulted from issues unrelated to his behaviour and that he treated the employee like a family friend.
The Adjudicator accepted the employee’s testimony that she was targeted daily with conduct that was discriminatory, abusive and in some cases, violent. The Adjudicator found that gender was a factor in the employer’s treatment of her, concluding:
“The evidence is clear that the bullying and harassment the applicant experienced was an abuse of power, exercised in part because she is a woman, that created a poisoned work environment.”
The Adjudicator decided that the employer had engaged in sex discrimination and sexual harassment, in violation of the Ontario Human Rights Code, causing the employee to resign from her employment.
Employee awarded lost income and damages for injury to dignity, feelings and self-respect
The Human Rights Tribunal of Ontario awarded the employee approximately $31,000.00, equating to the amount of lost income she experienced between the date she resigned and the date she commenced new employment. The Tribunal also awarded the employee $25,000.00 in damages for injury to dignity, feelings and self-respect.
Finally, the Adjudicator ordered a range of public interest remedies, including a requirement that the employer must complete an online learning course and implement human rights policies and procedures in the workplace.
Employee claimed he was terminated due to his cancer status
In Luckman v Bell Canada, the complainant employee began working for the employer in 2016 and was terminated one and a half years later. As a federally regulated employee, the applicant decided to file a complaint with the Canadian Human Rights Commission, alleging that his cancer diagnosis was a factor in his termination.
In April 2017, the employee was diagnosed with cancer. The next month, he was off on medical leave in order to undergo surgery. The employee attempted to return to work in October 2017, which was unsuccessful, but he ultimately returned to work in November 2017 before being terminated the following month.
The employee expressed that he was stressed at work and that the employer did not offer any accommodations, such as a flexible schedule, and the employee indicated that he felt that management was cold towards him. The employer argued that the employee’s position was eliminated as a result of organizational changes.
Tribunal found employer discriminated on the basis of disability
The Canadian Human Rights Tribunal Member found that the employee’s performance was not sub-standard. It was explained that the employee’s team leader was told to reduce her team by one person and said that the employee was previously selected as the most likely team member for termination at the next restructuring. The Tribunal rejected this explanation, concluding:
“I believe that [the employee’s] medical condition was a consideration for [the team leader] when she assessed his continued usefulness as a team member. It was a factor in her decision to select him for termination.”
As a result, the Tribunal found that the employer discriminated against the employee by terminating his employment, contrary to the Canadian Human Rights Act (the “Act”).
Employee awarded lost wages, compensation for pain and suffering and special damages
The Canadian Human Rights Tribunal awarded the employee approximately $91,000.00 as compensation for the wages he would have earned, but for his termination, until he found subsequent employment.
The Tribunal rejected the employer’s argument that the employee failed to mitigate his losses, finding that it was not unreasonable, in the circumstances, for the employee to decline to pursue the employer’s internal job opportunities that were made available to him.
The employee was awarded an additional $15,000.00 in compensation for pain and suffering due to the employer’s serious transgression of the Act. Finally, the Tribunal awarded the employee $15,000.00 in special damages because of the employer’s reckless engagement in the discriminatory practice, demonstrating a disregard for potential consequences. The Tribunal Member concluded that:
“Despite [the employer’s] sophisticated human resources processes and policies, it does not appear to me that anyone considered whether firing an employee recovering from cancer surgery might be discriminatory.”
Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Advice on Human Rights Matters in the Workplace
If you believe your human rights have been violated at work, or if you have had a human rights claim filed against you, you should contact a knowledgeable employment lawyer as soon as possible. At Grosman Gale Fletcher Hopkins LLP we have been helping employers or employees with their most challenging workplace matters for more than three decades. Contact us online or at 416.364.9599 to schedule a consultation.
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