By Stuart Rudner
Discrimination in the workplace
Penalties do not always reflect seriousness of conduct
May 5, 2014
Earlier this week, we observed Yom HaShoah or Holocaust Remembrance Day. One of the key messages that is expressed, year after year, is "never again." The Holocaust, widely recognized as one of the greatest atrocities in human history, should serve as a reminder of what mankind is unfortunately capable of: The systematic exclusion, dehumanization and murder of millions of people based upon, in that case, their religion.
While the hope has been that such a thing would never happen again, the decades since the end of the Holocaust have seen other genocides, ongoing racism and continued discrimination. While the Holocaust and other genocidal incidents were horrors of immense proportions, they had to begin somewhere. They would not have been able to take place if the general population did not allow it. As the Supreme Court of Canada recognized, in words echoed by international criminal tribunals, the Holocaust did not begin in the gas chambers — it began with words.
So what does this have to do with employment law in Canada? Simply that while we have human rights legislation that prohibits discrimination and harassment on the basis of a variety of grounds, including religion, and despite the fact that most people know that such behaviour is wrong, we continue to hear about situations where individuals have been either discriminated against or harassed due to their background.
Ironically, the news over the last few days has included allegations that the owner of the Los Angeles Clippers basketball team made comments to his then-girlfriend about not bringing her black friends to games.
Closer to home, in Islam v. Big Inc., a 2013 human rights case in Ontario, three Bengali-speaking Muslim restaurant kitchen employees in Toronto were mocked and reprimanded for speaking Bengali, subjected to comments about "cleaning Bengali sh-t from the kitchen," forced to eat pork in violation of their religious beliefs and then forced to break their Ramadan fast.
They were ultimately fired and were found by the Human Rights Tribunal of Ontario to have been harassed in violation of the Ontario's Human Rights Code. The tribunal ordered the respondent to pay to the three applicants close to $28,000, plus interest, to compensate for loss of income. In addition, the Tribunal awarded damages to the three employees, in the amounts of $37,000, $22,000 and $12,000 respectively, to compensate for violations of the inherent right to be free from discrimination, and for injury to dignity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimination.
We may read about such cases and discount them as anomalies. However, for every reported case of discrimination, there are likely many others that go unreported. Furthermore, even one is too many. It is not difficult to imagine similar conduct occurring in Germany before the Holocaust “officially” began. In other words, it starts with a shop owner refusing to hire someone because of her religion and has the potential to grow into something far scarier.
As a society becomes more accepting of such conduct, it becomes easier for the offenders to engage in more frequent and egregious crimes against humanity.
Unfortunately, while we have laws in place to protect individuals from such conduct, the penalties do not necessarily reflect the seriousness of such conduct. In a "typical" discrimination case, the victim is likely to be awarded compensation for lost wages, along with general damages for injury to dignity. The latter are likely to be somewhere in the $10,000 to $15,000 range, though the amounts have increased slightly in recent years.
The amounts, though, do not suggest that we, as a society, find such conduct to be reprehensible. Rather, it seems to be more along the lines of a cost of doing business.
There are many situations where discrimination is inferred due to unfortunate circumstances or timing. I am not suggesting such situations should result in massive damages awards. However, where it is found that an employer deliberately discriminated against or harassed an individual on the basis of his religion or other protected grounds, then it would send a stronger message if it was forced to pay a substantial amount of money, rather than a fairly nominal penalty.
I am by no means suggesting genocide is likely in Canada. However, the goal should not be to avoid such a massive atrocity but to avoid all discrimination and harassment. This starts by establishing a system that sends the clear message that those who engage in discrimination and harassment will be severely punished, and not slapped on the wrist.
Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw
. He can be reached at firstname.lastname@example.org