Human rights tribunal makes it clear that reprisals against employees will not be tolerated, even if their complaints lack merit
Employers who dig themselves a hole
The Ontario Human Rights Tribunal recently released two decisions in which it disagreed with employees’ claims of discrimination or sexual harassment but found the employers’ actions in terminating the employees amounted to a reprisal as outlined in the Ontario Human Rights Code. As a result, damages were awarded to the employee in each case despite the fact discrimination was not found.
Employment lawyer Catherine Milne examines these two cases and how in each one, the employer dug itself a hole and made itself liable for damages by subjecting the complaining employee to reprisals when it otherwise might have been off the hook.
Employers who are absolved of discrimination or harassment complaints can still find themselves in hot water if they can’t let the issue go and subject the complaining employee to reprisals, the Ontario Human Rights Tribunal has made clear in two recent cases.
In Schmor v. Stonechurch Vineyards, Michele Schmor claimed her part-time employment at Stonechurch Vineyards in Niagara-on-the-Lake, Ont., was marred by sexual harassment from a co-worker, Lisa Edlington. Though Schmor only worked four months at the winery’s retail outlet, Edlington subjected her to remarks that offended and embarrassed her and, in Schmor’s view, violated her rights under the code to “freedom from harassment in the workplace because of sex.” Furthermore, Schmor alleged reprisal, since her employment was terminated after the owners were told of Edlington’s comments.
Following Schmor’s return from a vacation in November 2006, she was asked by Edlington if she had sunbathed topless. Thereafter, Edlington began calling Schmor “boobie girl,” often in front of other employees and customers. About one month later, Edlington suggested to Schmor that she climb the winery’s sign to correct the store’s hours and then “slide down the pole like a stripper.” According to Schmor, Edlington then asked Schmor if she was wearing underwear.
Employee’s co-worker complained on her behalf
Though Schmor did not raise her concerns about Edlington’s conduct with anyone in management, she discussed the matter with several co-workers. One of the co-workers had heard the “boobie girl” comment first hand and she approached management to complain about Edlington’s conduct. The co-worker had been with the winery for more than seven years, but immediately following her discussion with management, she was told to start looking for another job. Within days, the co-worker’s employment was terminated. Schmor continued to work for a few weeks but soon Stonechurch stopped scheduling her for shifts. It hired a new full-time employee in January 2007 to replace Schmor.
The tribunal did not find Edlington’s comments amounted to sexual harassment as defined by the code. Though the remarks referred to body parts and activities that in other contexts have sexual connotations, the use of the word “boobie” in this context did not transform an insulting remark into harassment because of sex. Though she found the comments demeaning and embarrassing, Schmor never told Edlington the remarks were unwelcome. However, given that the “boobie girl” remark was made in front of customers, the tribunal’s view was that Edlington ought to have known such a comment was inappropriate.
The tribunal focused on the reprisal, which followed the co-worker’s complaint about Edlington’s comments. Though it was not Schmor who raised the human rights issue with her employer, but a co-worker on her behalf instead, the tribunal determined Stonechurch’s action in terminating Schmor’s employment was at least partially in reprisal for her raising her human rights concern through the co-worker.
Schmor was awarded 18 weeks of lost wages — the time it took her to find alternate employment — and a further $2,000 for general damages for loss of her right under the code to be free from reprisals.
Employee denied bonuses and salary increases after discrimination complaint
In Chan v. Tai Pan Vacations Inc., the tribunal reviewed allegations of discrimination on the basis of sex as well as reprisals and threats of reprisal based on the employee’s stated intention to become pregnant.
Sandy Chan started working for Toronto-based Tai Pan Vacations as a customer service representative in October 1999. Her duties included accompanying customers on bus tours to Casino Rama near Orillia, Ont., facilitating customers’ entry into the casino and generally being hospitable to those on the tours. In December 2005, Chan told Tai Pan she was pregnant and asked for a transfer to an office position. Chan was told no such positions were available and she would instead have to go on unpaid leave. Two months later, Chan suffered a miscarriage and subsequently returned to her previous position.
Chan filed a complaint with the Ontario Human Rights Commission in February 2006, alleging the unpaid leave forced upon her was discriminatory. In March 2007, the complaint was settled and Chan recovered her wages lost between December 2005 and February 2006 during the unpaid leave and a bonus which she had not received in June 2006.
However, Chan said after she filed the complaint she was refused the annual bonus, despite the fact she had always received it and her performance had been graded “excellent.” Additionally, she said she was overlooked for salary increases and excluded from “splinter parties” held at Casino Rama to thank preferred customers. She was also refused an opportunity to change her day off in order to attend a fertility treatment.
Finally, in November 2006, Chan said she was told that she would only receive her bonus and salary increases if she withdrew her complaint. Chan felt if she did not settle, she would lose her job.
Remarkably, two weeks after the settlement of her complaint, Chan was terminated — the ultimate act of reprisal. Chan followed with a second complaint, based on her treatment after the first complaint was filed.
The tribunal had little difficulty finding Chan’s termination an “obvious act of reprisal and violation of the code.” It noted that following Chan’s termination, the human resources manager told Human Resources and Social Development Canada that “Sandy Chan was terminated on a without cause basis upon payment of all statutory entitlements. Due to recent litigation between Sandy Chan and Tai Pan the employment relationship and employer/employee trust were affected to the point that it was impossible to continue her employment.”
The tribunal determined the wording of the letter related to Chan’s human rights complaint and her termination was a deliberate act of reprisal that went “beyond being willfully blind or reckless, it was a calculated retaliation.”
The tribunal ordered Tai Pan to pay Chan $15,000 for discrimination and the humiliation and loss of dignity she suffered from her termination. In addition, Chan received lost wages representing 20 months’ salary, less part-time income she earned during that time. In addition, Tai Pan was ordered to draft anti-discrimination and harassment policies and hire an external consultant to train all managers and supervisors on human rights in employment.
Tips for employers
Employers who discipline or terminate after an employee — or a co-worker on that employee’s behalf — advises them of a potential human rights violation, face significant penalties. Even in cases where the tribunal cannot find a clear violation of a human right, it appears to be enough that the employee honestly believed his rights to be violated. Once an employer becomes aware of a potential violation, any attempt to discipline or terminate the employee must be supported by facts or business decisions completely unrelated to the alleged violation.
For more information see:
•Schmor v. Stonechurch Vineyards, 2009 HRTO 410 (Ont. Human Rights Trib.).
•Chan v. Tai Pan Vacations Inc., 2009 CarswellOnt 2061 (Ont. Human Rights Trib.).
Catherine Milne practices employment and human rights law at the Toronto law firm Zubas & Milne. She can be reached at (416) 593-5844 or at [email protected].
