Employer vicariously liable for discriminatory act, finds tribunal
A worker was discriminated against by both an employer and an individual co-worker who made sexually harassing comments towards her, the Ontario Human Rights Tribunal has ruled.
The worker started employment on Nov. 11, 2019, as a warehouseperson for Kuehne + Nagel, an international transport and logistics company, at one of its Ontario locations. Six days later, on Nov. 17, a male co-worker who started on the same day drove his lift truck up to her lift truck and started talking to her. She told him to stop as she had a large, heavy skid on her forks, and he responded by asking if she was going to tell on him if he didn’t use his horns.
The worker replied that she would report him for not using his horns. The co-worker called her a “bitch” and drove off.
Later that day, the worker complained to the shift supervisors about the comment. Both she and the co-worker were asked to submit written statements regarding the incident, with the applicant's statement mentioning the derogatory term, health and safety issues, and that she considered the co-worker’s behaviour as harassment. The co-worker’s statement didn’t mention the insult, but he stated that he had been driving too fast and promised not to do it again.
Employer viewed incident as safety issue, not harassment
The written statements were passed along to management, which didn’t take any action against the co-worker because it viewed the matter as a health and safety issue and the co-worker acknowledged his safety-related misconduct.
On Nov. 19, the co-worker was operating a lift truck with a large, heavy skid on the forks while looking backward at the worker and singing “She’s so dangerous.” According to the worker, he then called the worker a “hot mama.” The worker didn’t report this incident.
The same day, Kuehne terminated the worker’s employment. Management later claimed that it wasn’t aware that the worker believed that she was being sexually harassed and it didn’t interpret the worker’s Nov. 17 written statement as a discrimination or harassment complaint, but rather a safety complaint.
After her termination, the worker made a harassment complaint to the Ontario Ministry of Labour, which ordered the company to investigate the worker’s complaint. The worker then filed a human rights complaint against Kuehne, the co-worker, and a manager who made the termination decision, alleging that she was discriminated in employment based on her sex and her termination was a reprisal for her complaint.
Discriminatory term against women
The tribunal found that the use of the term "bitch" constituted discrimination based on sex, as it is a demeaning term directed at women. The tribunal further held that Kuehne was vicariously liable for the discriminatory act, as it occurred during the course of the worker’s employment.
The tribunal also noted that the company failed to investigate the incident when it was reported, thus breaching its duty to provide a discrimination-free work environment as required by the Ontario Human Rights Code. Although an investigation was conducted following the applicant's termination, this inquiry didn’t satisfy the employer's obligation to ensure a safe and discrimination-free workplace during the worker’s employment, the tribunal said.
The second incident involved a claim that the co-worker referred to the worker as a "hot mama." The tribunal found that this incident likely didn’t occur, noting that the worker had immediately reported the previous incident but failed to mention this one until much later.
While the tribunal concluded that the "bitch" comment amounted to sex-based discrimination, it didn’t find sufficient evidence to support the worker’s claim of sexual harassment. Sexual harassment requires a pattern of vexatious comments or conduct related to sex, and a single, isolated comment in this case did not meet that threshold, said the tribunal.
No intent for reprisal
The tribunal also dismissed the worker’s claim that her termination was a reprisal for asserting her rights under the code. Kuehne indicated that the decision to terminate her employment was made without knowledge of her harassment claims, and the tribunal found no evidence of retaliatory intent.
Additionally, the tribunal found no evidence to support allegations against individual respondents in management and dismissed the claims against them.
The applicant sought $5 million in damages, but the tribunal awarded her $300 in compensation for injury to dignity, feelings, and self-respect. The tribunal determined that the discriminatory act was of a less serious nature, involving few incidents and no physical contact. Liability for the damages was held to be joint and several between Kuehne and the harassing co-worker.
