'Place of origin is something you can't change and it's deeply personal… to the individual'
The British Columbia Human Rights Tribunal has upheld a worker’s allegations of discrimination and retaliation against a company when he was required to undergo a “reality check” process after complaining about comments related to his country of origin.
The worker, who was originally from Iran, was employed as a video game programmer at the company beginning in November 2016.
In the summer of 2018, the World Cup soccer tournament was underway and a match between Iran and Portugal was on in the company lounge. Upon learning that Iranian fans had made noise outside the hotel where Portugal’s team had been staying, the worker’s supervisor said they were “kind of cheating.” Afterwards, the company president sent out a mass email saying that “it almost worked.”
The comments made the worker feel uncomfortable, as he felt they were negative about Iranian fans. He didn’t perceive them to be discriminatory, but he decided to raise his concerns on June 25.
The supervisor didn’t understand why the worker felt uncomfortable because he didn’t intend any harm from his comment. The supervisor became angry about being accused of insulting Iran and the conversation grew heated.
Management concerned about worker’s complaint
The worker emailed the company president about the matter, and the president then discussed it with the supervisor over email. The president directed the supervisor to get the worker to agree to a “reality check” process regarding his oversensitivity before raising similar concerns in the future. The president expressed concern about having to “walk on eggshells” around the worker if they didn’t address the issue promptly.
“Comments like that really strike at the heart of an opportunity to work collaboratively to make things improve – they were basically trying to shut down and restrict his ability to speak freely in the workplace,” says Trevor Thomas, co-founder and partner at Ascent Employment Law in Vancouver.
The supervisor drew up a document outlining the reality check process and met with the worker several times to discuss it, with the supervisor mentioning that they may have to “cut ties.” This made the worker fearful for his job, as did a reference in the document to termination of employment for “verbal assault.”
They developed six drafts of the document, but the worker disagreed with how it characterized his concerns as "oversensitive" and required him to agree to better tolerate others' views in the workplace. It also outlined several points, including that “diversity of thought” was encouraged in Canada and that the worker took the comments “out of context.” The company asked the worker to sign the document, but he refused.
On Nov. 29, the worker filed a human rights application alleging that the “reality check” process constituted discrimination based on place of origin.
Termination of employment
The company terminated the worker’s employment on Feb. 7, 2019, due to what the company said was a shortage of work and a loss of revenue. The worker amended his human rights complaint, alleging that the termination was retaliation for his initial complaint.
The tribunal found that the reality check process was essentially disciplinary, caused the worker to reasonably fear for his job, and that the contents of the document were unreasonable, degrading, and demeaning. The document directed the worker to tolerate any comments about Iran, insinuated that he didn’t understand basic Canadian values, and instructed him to change his personal perspective, the tribunal said.
The tribunal also found that the reaction to the worker’s concerns was disproportionate and supported an inference that his place of origin was a factor, stating that “it is more likely than not that stereotypes about Iranian people informed [management’s] assumption that [the worker] could not understand or tolerate other points of view.” The reality check process was an adverse impact related to the worker’s place of origin, said the tribunal.
“[The process] was punishment because it instilled a sense of fear in the worker about his continuing employment at the company,” says Thomas. “There were certain words in the document itself, and the supervisor made a couple of comments that, to the worker, seemed like it was a threat to his employment.”
The tribunal also found that it was particularly harmful to the worker due to his vulnerability from experiences as an Iranian person and an immigrant to Canada.
Document was degrading to worker
“The actual content of the document was quite degrading to the worker - clearly, the intention was not to assist the worker to improve in the workplace, but more to improve generally in his way of adapting to Canadian values and Canadian society,” says Thomas. “It went well beyond what was reasonable to improve the worker's performance in the workplace.”
Although the company said it wanted the document to be a collaborative process, it was too one-sided, according to Thomas.
“The employer should have a discussion with the employee to understand where this is all coming from, talk about his concerns to find out the actual problem, and then come up with a plan to address it,” he says. “So from a big picture, you’re identifying the problem and working with the employee to put together a solution.”
“And I think in a case like this that involves a person's country of origin, you don’t want to put it all on the employee and say, ‘This is your problem, this is your fault, and you need to change,’” adds Thomas. “This is an opportunity for growth for the company, so it would be very meaningful for the company to have said, ‘How do we improve as a company so that this doesn't happen again?’”
The tribunal determined that the company discriminated against the worker in employment. It held the company responsible for remedying the discrimination and the president was also personally responsible, as he was the directing mind behind the discrimination. The supervisor, however, wasn’t individually liable because he was acting within the scope of his employment and under the president's direction, the tribunal said.
Retaliation for human rights complaint
The tribunal also found that the company retaliated against the worker by terminating his employment two-and-a-half months after the discrimination complaint was filed. There was no dispute that the company was aware of the complaint prior to termination, and the timing supported an inference of a connection between the complaint and the termination, said the tribunal. In addition, the company's explanation that the worker was dismissed due to a shortage of work wasn’t credible, as the evidence – including a job posting online for a similar position shortly after his termination and he was the only programmer let go – didn’t support it.
“One of the things that comes up often in discrimination cases is that it's rare to find direct evidence of discrimination - nobody's going to admit that they fired someone because of their place of origin - so the tribunal will often look for other indicators, and one of those other indicators is the timing of events,” says Thomas.
The company was ordered to pay the worker $19,761 for lost wages. Additionally, the company and its president were ordered to pay the worker $35,000 as compensation for injury to dignity, feelings, and self-respect from the discrimination. The nature of the discrimination, the power imbalance, and the significant impact of the discrimination – the worker felt his job was threatened during the process and he suffered from fear and anxiety - warranted a relatively high amount of damages, said the tribunal.
The way the reality check process was handled was a key factor in the significant amount of damages for injury to dignity, according to Thomas.
“The nature of the discrimination was subjecting the worker to the ongoing document process during which he feared for his employment and felt he was treated as a misfit and an outsider, all because he raised concerns from his perspective,” he says. “Like many other protected grounds, place of origin is something you can't change and it’s deeply personal and meaningful to the individual.”
Policies and HR guidance
The circumstances could likely have been avoided if the company had written policies dealing with comments in the workplace, discrimination, and addressing complaints – along with HR support, says Thomas.
“My understanding of the situation is that it was basically the supervisor trying to figure out how to deal with a human resources problem, where he's got the president breathing down his neck and an employee pushing back and saying that this isn't right,” he says. “The supervisor was between a rock and a hard place, and the decision doesn't say anything about the supervisor of reaching out to an HR person to get some guidance.”
“If you’re trying to figure out the nuances of human rights and employment law issues and you don’t know what you’re doing, you’re just going to do what you're told and that can result in problems,” adds Thomas. “If the supervisor had talked to someone with HR expertise, they could have said maybe this isn't the best approach.”
