Reprisals against complaining employees not tolerated: Human rights tribunal
Employers facing discrimination or harassment complaints can make a bad situation worse when they subject a complaining employee to reprisals, if recent Ontario Human Rights Tribunal decisions are any indication.
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.
During her 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 right to “freedom from harassment in the workplace because of sex” under the Ontario Human Rights Code.
Following Schmor’s return from a vacation in November 2006, Edlington asked her if she had sunbathed topless. Thereafter, Edlington called Schmor “booby 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.
Co-worker complained on her behalf
Though Schmor did not raise her concerns about Edlington’s conduct with management, she discussed it with several co-workers. One of the co-workers, who had heard the “booby girl” comment first-hand, approached management to complain.
But the co-worker, who had been with the winery for more than seven years, was told to start looking for another job after her complaint. 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 and hired a new full-time employee in January 2007 to replace her.
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 “booby” in this context did not transform an insulting remark into sexual harassment.
Though she found the comments demeaning and embarrassing, Schmor never told Edlington the remarks were unwelcome. However, since the remark was made in front of customers, Edlington ought to have known such a comment was unwelcome and inappropriate, found the tribunal.
The tribunal focused on the reprisal and 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 to be free from reprisals.
Employee denied bonuses and salary increases after complaint
In Chan v. Tai Pan Vacations Inc., Sandy Chan worked as a customer service representative on bus tours with Toronto-based Tai Pan Vacations for six years. In December 2005, Chan told Tai Pan she was pregnant and asked for a transfer to an office position. The company said 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, saying the unpaid leave forced upon her was discriminatory.
After she filed the complaint, Chan said 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 parties held at Casino Rama to thank preferred customers.
She was also refused an opportunity to change her day off to attend a fertility treatment. Finally, in November 2006, Chan said she was told she would only receive her bonus and salary increases if she withdrew her complaint. She felt if she did not settle, she would lose her job.
In March 2007, the complaint was settled and Chan recovered her wages lost during the leave and the bonus. Remarkably, two weeks after the settlement, Chan was terminated — the ultimate act of reprisal. She made 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.” Following Chan’s termination, the HR manager told Human Resources and Social Development Canada that “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,” found the tribunal.
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,” it said.
Tai Pan was ordered to pay Chan $15,000 for discrimination and the humiliation and loss of dignity she suffered from her termination. In addition, Chan received 20 months’ salary, less part-time income she earned during that time. Tai Pan was also 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 that discipline or terminate an employee after the 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 no clear violation of a human right is found, 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 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 by e-mail at [email protected].
