$30,000 award for discrimination would have been higher “but for” employer’s reaction
The importance of promptly responding to complaints of discrimination or harassment and conducting proper investigations cannot be overstated.
In Ahmed v Magellan Aerospace Corporation, 2019 HRTO 794, while the Human Rights Tribunal of Ontario (HRTO) awarded damages to the applicant, it was clear that the award would have been higher had the respondent not acted appropriately to respond to the complaint and create a harassment-free workplace.
In 1988, Aftab Ahmed emigrated to Canada from Bangladesh at the age of 34. In 1989, he commenced employment with the respondent as a mechanical engineer. Ahmed raised allegations of a long history of discrimination and harassment during the course of his employment with the company. In particular, he alleged experiencing racism in relation to the company’s management structures, reporting relationships, and employment opportunities, as well as unfair performance management.
In December 2013, Ahmed went on sick leave and alleged that it was a result of the racism he experienced at work. While on sick leave, he sent the company’s vice-president of human resources a written complaint, including allegations of systemic discrimination.
What happened next was crucial to the adjudicator’s decision. The company retained a third-party investigator to investigate the complaint. The investigation took almost a year to complete, and the investigator conducted multiple interviews of Ahmed and employees (both past and present).
Ultimately, the investigator reported that the investigation “confirmed that several, but not all, of his complaints were corroborated.” In particular, the investigator found the following, amongst other things:
- Racialized employees were harassed.
- Racialized employees were isolated from customers and excluded from meetings because of unsubstantiated concerns based on race.
- Racialized employees received the lowest salary increases.
- Racialized engineers did not receive bonuses for obtaining their P. Eng. designations while white engineers did.
- Ahmed was denied business cards with his P. Eng. designation from 2008 to 2015, which appeared to be at least partly racially motivated because his supervisor had commented that his engineering degree must be from “one of those places in the Punjab”.
As a result of the investigation report, the respondent took the following steps:
- Restructured the department.
- Provided the applicant with new business cards noting his P. Eng. designation.
- Equalized the applicant’s salary with that of an equivalent non-racialized engineer in the same department.
- Provided apologies from all current employees involved in the discriminatory conduct.
- Offered the applicant a lump sum payment of $6,000 in order to compensate him for historical wage disparities, and an additional week of vacation in exchange for a release.
The applicant then brought an application to the HRTO.
During the investigation and the litigation process, Magellan Aerospace made various admissions that supported a finding of discrimination. The company highlighted its prompt and appropriate response to the initial complaint as well as the steps it took to create a harassment-free work environment.
The adjudicator upheld the application in part, holding that although Ahmed had established discrimination in employment, Magellan acted appropriately and promptly in response to his complaint and met its obligation to provide a harassment-free environment. Ahmed was awarded $30,000 in general damages.
The adjudicator placed great emphasis on Magellan’s reasonable response when determining the appropriate award of damages. In doing so, the adjudicator commented as follows:
“[The investigator] conducted a thorough and necessarily lengthy investigation... made findings that the applicant had been discriminated against contrary to the [Ontario Human Rights Code]. The respondent accepted these finding[s] and took several significant remedial measures. The respondent submitted that it met its obligation to address the applicant’s complaint in a timely and effective manner and therefore should not be held liable for any acts of discrimination found by [the investigator] and proven before this Tribunal...
“I find that the respondent acted reasonably in response to the applicant’s complaint and therefore met its obligation to provide a harassment free environment pursuant to section 5(2) of the Code…
“The respondent reacted promptly and reasonably to the applicant’s complaint... The respondent accepted the investigation results and acted on most of the applicant’s remedial requests. I note that the respondent implemented punitive measures that would be outside of the Tribunal’s remedial jurisdiction and provided apologies to the applicant, which is a remedy the Tribunal generally will not order. I find it appropriate to consider the respondent’s generally reasonably [sic] response to the applicant’s complaint when determining the appropriate award of damages…. To be clear, this award would be higher but for the respondent’s reaction to the applicant’s complaint.”
As this case illustrates, decision-makers will take an employer’s response to complaints of discrimination and harassment into consideration when assessing damages.
Employers should take complaints of harassment or discrimination very seriously. In responding to such complaints, employers should act promptly, conduct investigations (whether internal or external), and take reasonable steps to provide a harassment-free work environment. Investigations should be conducted in a reasonable and objective manner. By doing so, employers can significantly minimize the risk of liability, and even if they are found to be liable, the damages are more likely to be curtailed.
Employers should also consider revising their workplace harassment and anti-discrimination policies and procedures to ensure they are compliant with their legal obligations and to minimize the risk of liability.