Employee wants $100,000 for racial discrimination – and gets $3,500

Worker complained of several incidents breaching harassment policy, but employer met its obligations in some of them

The Ontario GrievanceSettlement Board has awarded $3,500 to a correctional officer who wanted$100,000 in damages for discrimination and harassment at work.

SimoneWilliams was a correctional officer at the Toronto South Detention Centre inToronto, hired by the Ontario Ministry of Community Safety and CorrectionalServices in May 1987.

In July2008, while working at the Toronto Jail, Williams, who is black, came forwardto speak publicly on her experience of what she called a poisoned workenvironment that was the result of factions and divisions within the workplace.Though this spearheaded a process of developing systemic solutions at the jail,it exposed Williams to racial threats, including two anonymous hate letterssent to the jail.

After the jail received the hate letters, Williams went on stress leave,returning in an accommodated position in December 2009. She remained afraid ofworking nights and being in the dark alone, which limited her ability to workovertime. When the Toronto Jail closed, Williams transferred to the new TorontoSouth Detention Centre.

On July 27,2010, Williams was in a manager’s office warming her coffee when anothercorrectional officer entered the office, glanced at her, and said the name of amale correctional officer who also worked there and was also black. Williamssaid, “Excuse me?” and the co-worker said he had made a mistake and hadn’trecognized her without his glasses on. Williams became agitated so theco-worker said, “Whatever, have a nice day” and left.

Williams hadworked with this man for several years and suspected it wasn’t an innocentmistake but instead had racist overtones. She didn’t initially do anything butthree weeks later she wrote an occurrence report. When the operations managerasked her if she wished to pursue the matter, Williams said no. She alsodeclined assistance from the employee assistance program (EAP) and didn't filea complaint under the ministry’s workplace discrimination and harassmentpolicy.

However, management decided to investigate the occurrence report becauseit was race-based. After an independent investigator interviewed Williams andthe co-worker, it was determined in October 2010 the “common visiblecharacteristic” Williams shared with the other correctional officer with whomshe was mistaken was being black. This brought it under the policy, and theco-worker was found to have violated the policy. The co-worker was subjected tocorrective action, but Williams wasn’t informed of the outcome of theinvestigation.

Williamsworked for more than a year after her occurrence report and testified itcontinued to be a poisoned work environment which caused her to feel “exhaustedand disheartened” when the ministry seemingly failed to respond to herconcerns. Though she hadn’t initially wanted the ministry to pursue the matter,once the investigation was launched she was interested in the outcome. Thepolicy specified that appropriate remedies were to be decided upon within 30days of the completion of the investigation.

Employee felt unsafe at work

On Nov. 9, 2010, Williams gave written notice to her supervisorthat she intended to leave the workplace because she felt unsafe, under a safedeparture protocol the ministry had which was in place to accommodate employeeswho experienced severe emotional shock in the workplace. She said she feltunsafe because of short staffing in her area and the ongoing concern with thehate letters and she would return to work when the staffing level returned tothe required amount. The protocol was triggered by an employee providingwritten notice of the request and ended when it was reasonable to conclude theemployee could safely return to work.

Afterdiscussing the matter with Williams, the ministry found that short staffingwasn’t a sufficient reason to invoke the safe departure protocol. On Dec. 22,after six weeks of leave, Williams was ordered to return to work or beconsidered absent without leave.

On March 8,2011, Williams and another officer noticed a faint swastika on a wall at thedetention centre, which reminded Williams of another incident years earlierwhen someone had written “KKK” on a wall. She photographed the swastika andboth officers reported it.

Shortlyafter the report, the swastika was painted over and all staff on the floor wererequired to submit occurrence reports. It also installed a camera in the area.Williams didn’t hear anything further, but 18 months later, in September 2012,the ministry and the union issued a joint memorandum condemning graffiti.

On April 29,2011, Williams was leaving the detention centre at the end of the shift, butthe officer responsible for entrance and exits was booking inmate visits andprofessional visitors. Williams felt the officer deliberately made her wait andasked him if he was unable to multitask. She also claimed he had made racistremarks in the past. The officer asked her angrily if she was accusing him ofracism, but Williams said she wasn’t talking to him. The officer filed acomplaint and Williams wrote an occurrence report, but the ministry didn’tinvestigate.

Nearly threeyears later, in February 2014, Williams was delivering meal carts because thelocked slider doors weren’t working properly and it would be a security riskfor inmates to deliver them. When she explained to the security manager why shewas delivering the meals, he told her the doors had been repaired and Williamsasked “What if it fails again?” He replied by asking “What if you win thelottery and don’t have to work anymore?”

Williamsfelt the security manager used a “flippant, racist tone” that implied she waslazy and stupid. She reported the exchange but an advisor on the discriminationand harassment policy determined the incident did not constitute harassment.

A monthlater, Williams filed another occurrence report saying a sergeant gaveinstruction to her in a demeaning way with a raised voice and gestures in frontof others. She said the sergeant used a racist tone, but the sergeant explainedshe hadn’t followed instructions and he spoke loudly because of surroundingnoise. The ministry took no action.

Series of incidents led to grievance and human rights complaint

Williams filed a grievance under the collective agreement and acomplaint with the Ontario Human Rights Tribunal claiming all the incidentswere discrimination and harassment and the ministry failed to investigate orrespond appropriately, causing her harm. She sought damages of $100,000.

Thegrievance settlement board addressed the issues in both the grievance and thehuman rights complaint. It found the ministry investigated the July 2010incident with the co-worker mistaking her for a male colleague, but it failedto respond and notify her of the outcome in a timely manner. The delay causedsome injury to Williams’ dignity and feelings of self-respect, to which she wasentitled to $3,500 in damages.

The boardalso found Williams followed the proper procedure for the safe departureprotocol, so the leave could not be refused. Even if the employer disagreedwith the reason or felt the employee could safely return to work, it shouldfirst meet with the employee and the union to discuss rather than unilaterallyending the leave, said the board. With this clarification, the board determinedno further relief was necessary.

The boardfound the swastika graffiti was not directed at Williams personally and therewas no obligation to deal with any effects on her under the discrimination andharassment policy. If she needed support, she was free to say so to theministry, said the board.

The boardfound the ministry was obliged to investigate the April 2011 incident with theofficer at the door who made Williams wait, as both officers filed reports,there was a discussion of racism and an obligation under the collectiveagreement to investigate any inappropriate conduct. However, Williams didn’tfile a complaint under the harassment policy which would have ensured aninvestigation — her occurrence report was “a defensive act” in response to theother officer’s complaint and there was no suggestion Williams suffered anyharm or disadvantage stemming from the incident.

Finally, theboard found the ministry looked into the 2014 incidents with the securitymanager and sergeant and found no intention by either to demean Williams orhave racial overtones. There was no violation of the harassment policy and,since Williams didn’t file a complaint under the policy, there was noobligation to further investigate them, said the board.

The ministrywas ordered to pay Williams $3,500 for breaching the discrimination andharassment policy when it failed to advise her in a timely manner of theoutcome of the July 2010 incident. The ministry’s breaches of the safedeparture protocol in December 2010 and the collective agreement obligation toinvestigate the April 2011 door incident didn’t require additional remediesother than clarification of the procedure, and there were no breaches in theother incidents, leaving the total damage award at $3,500.

For more information see:

Ontario (Ministry ofCommunity Safety and Correctional Services and OPSEU (Williams), Re, 2015CarswellOnt 378 (Ont. Grievance Settlement Bd.).

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