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Human rights tribunals not fair – and that's OK

But innocent employers need help when defending frivolous claims in high-stakes game of chicken

By Todd Humber

Human rights tribunals are expensive, biased, clogged with frivolous claims, don’t have a clear mandate and take too long to render decisions.

That damning statement sums up the negative thoughts of employers on the Human Rights Tribunal of Ontario (HRTO), according to a survey of 235 HR professionals conducted by the Human Resources Professionals Association (HRPA).

Workers can file nuisance claims using legal aid, without much risk, in the hope employers will pay the worker off — regardless of the claim’s merit — because it’s the cheaper and easier route to go.

It’s a high stakes game of chicken. An employee could say, “Just pay me $5,000 and I’ll go away.” The employer, looking at a legal bill twice that plus the hassle of fighting a battle that could drag on for months, might be tempted to cut a cheque and end the pain.

It’s easy to understand why employers feel the deck is clearly stacked against them — because it is. And that’s no accident.

One need look no further than the upcoming Aug. 15 issue of Canadian HR Reporter to why employers are guilty until proven innocent. In the Insight section, we feature an article looking back at the story of Dianna Janzen and Tracey Govereau, two Winnipeg waitresses fed up with sexual harassment by a coworker and the inaction of management in 1982, who took their fight all the way to the Supreme Court of Canada and changed the employment landscape in this country.

The laws may have changed thanks to these two women, but the behaviour in too many workplaces has not. Flip through the pages of Canadian Employment Law Today and you’ll uncover story after story of employers behaving badly, turning a blind eye or unwittingly condoning boorish behaviour.

Like a worker in British Columbia whose supervisor wouldn’t stop sending her text messages with sexual propositions and profanity. Or the black construction worker in Nova Scotia whose coworkers used the “N” word, told him a funeral home “just threw black people into a hole” and asked him if he ate chicken and watermelon. Or the farm in Quebec that had a nicely equipped cafeteria, but wouldn’t let black workers anywhere near it. Instead, they had to use a filthy shack that was never cleaned, had no running water and no heat. The toilets had been condemned. Graffiti on the farm read “here are our monkeys” and “blacks are pigs.”

This is modern-day Canada?

These stories are the exception, not the norm. But one story is too many. In an ideal world, we could abolish the tribunals. But it’s not, and we can’t. And the survey results show employers appreciate this.

Frivolous claims are the price we pay for giving all workers the ability to fight for justice. Until we stamp out poor behaviour in the workplace — a day unlikely to ever come — we can’t lock the doors on human rights tribunals.

But innocent employers are paying more than their fare share of the bill. Perhaps HRTO and the province could consider a surcharge on damages for egregious workplace human rights violations. This fund could be used to compensate employers faced with frivolous cases so they won’t be forced to blink in the game of chicken.

Employers who did nothing wrong will have costs covered, and it will create one more disincentive to turn a blind eye to bad behaviour.

Todd Humber is the managing editor of Canadian HR Reporter, the national journal of human resource management. He can be reached at todd.humber@thomsonreuters.com.

Todd Humber

Todd Humber is the publisher and editor-in-chief of Canadian HR Reporter, the national journal of human resource management. Follow him on Twitter @ToddHumber
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