June 16, 2003 by Israel Foulon LLP
Employers should guard against subtle forms of discrimination
Long gone are the days when employers hung signs in the window stating that people of certain ethnic groups “need not apply.” However, employers must guard against more subtle forms of discrimination, such as the belief that a person with a disability won’t be capable of fulfilling job requirements or the pervasive existence of homophobic comments in the workplace.
Repeated sexual harassment
Ligia Arias was an 18-year-old co-op student enrolled in a hotel management program when she got a job at the Comfort Suites Hotel. Arias complained to the Ontario Human Rights Commission that she was sexually harassed by one of the owners of the hotel. The conduct included lewd sexual remarks and requests for sexual contact. The Ontario Human Rights Tribunal found Arias was harassed and that the workplace was “poisoned” by this conduct which had also been directed at other employees. The tribunal also held that the subsequent termination of Arias constituted an act of reprisal, contrary to the Ontario Human Rights Code.
The owner and the hotel were both held to be liable for the sexual harassment. General damages of $25,000 were awarded to compensate Arias for the infringement of her rights. In making this award, the tribunal considered the seriousness, frequency and duration of the repeated infringements. They also noted the tender age and consequent vulnerability of Arias.
Arias v. Desai [2003] O.H.R.T.D. No. 1.
Employer counter-claim malicious
Tom Ketola was employed at Value Propane when he started to experience paralysis in his tongue. This resulted in slurred speech and excessive salivation. Eventually, he was diagnosed with ALS, a neuromuscular disease. Ketola did not tell his employers about his condition, but they noticed a change in his health. His hours and duties at work were reduced to the point where he was cleaning up, doing general maintenance work, and even mowing his employer’s lawn.
Eventually his employment was terminated. When Ketola brought a complaint to the Ontario Human Rights Commission, his former employer sued him in small claims court for allegedly stealing propane.
The Board of Inquiry held that the employer had discriminated against Ketola on the prohibited ground of disability. The board further held that the small claims court action constituted a reprisal, contrary to the Ontario Human Rights Code. The accusation of theft was false and malicious. Ketola was awarded general and mental anguish damages in the amount of $20,000 to compensate him for suffering discrimination. An additional $20,000 was awarded as compensation for the reprisal. Ketola was also awarded special damages for lost wages.
Ketola v. Value Propane [2002] O.H.R.B.I.D. No. 14.
- General damages: Complainants may be compensated for the personal humiliation and loss of self-respect that they are presumed to suffer as a result of discrimination. This is distinguished from mental anguish. The Ontario Divisional Court in Ontario (Human Rights Commission) v. Shelter Corp. held that there is no ceiling on the amount of general damages that can be awarded. The court described the purpose of such awards as “compensation for the right to be free from discrimination and the experience of victimization.” There have been several cases since Shelter Corp. where the court ordered general damages exceeding $10,000.
- Punitive damages: Generally, the goal of damage awards in human rights cases is to “make whole” the complainant but there are rare cases where the court will order an employer to pay punitive damages as a result of particularly heinous conduct.
Human rights tribunals have broad remedial powers and have been known to order the implementation of various employment policies, including hiring quotas.
Current trends show that employers should also be concerned with the financial consequences of discriminatory conduct. While the purpose of damages is to compensate the complainant, not punish the wrongdoer, the magnitude of recent damage awards comes across as punishment enough.
Protecting your firm
- Educate the people involved in the hiring process. Explain what types of questions are permissible from a human rights perspective and what types of questions are desirable from an industrial psychology perspective.
- Standardize the questions that are asked during job interviews as much as possible. A written list of standard questions may be helpful if a human rights complaint is brought against your company.
- Make sure you have an internal procedure to deal with complaints of discrimination. The procedure should be accessible, private and sufficiently flexible to cover a range of complaints.
- Immediately deal with complaints about harassment and other discriminatory treatment within the workplace. Delay may be interpreted as callousness on the part of the employer and may encourage the employee to seek recourse elsewhere including going to the Human Rights Commission.
- When laying off a large number of people, try to determine whether a specific group, such as women, are disproportionately affected by the layoffs.
- Use particular care when dealing with an employee who is no longer able to perform his job due to a disability.
Remember that legislation broadly defines disabilities and includes both physical and mental conditions.
Every province has laws that list various prohibited grounds of discrimination, such as gender, disability and sexual orientation, and protect against the violation of human rights. Anyone who believes that they have been subject to discrimination can bring a complaint to the Human Rights Commission. Many of these complaints are employment-related.
Some claims arise out of the hiring process, with an applicant alleging he was denied a job on a discriminatory basis. Claims can also arise from improper treatment in the workplace, ranging from harassment to failure to promote an employee in violation of their human rights. Particularly onerous are claims by former employees that their termination was motivated by discrimination.
Recent cases show that an employer may be required to pay substantial damages if it is found to have violated human rights legislation. There are several kinds of damages a tribunal may order.
- Specific damages: These damages compensate the complainant for tangible losses which result from the discriminatory conduct. For example, if an employee is fired for discriminatory reasons, the employer may be ordered to compensate the employee for the entire time that the employee was unemployed. These types of damages are not limited by statutory or common law requirements of reasonable notice. They are governed by actual damages suffered by the employee, though the employee does have a duty to mitigate.
- Mental anguish: An employer may be ordered to compensate a complainant for the mental anguish suffered as a result of discrimination. These damages are triggered where the violation of the complainant’s rights was wilful or reckless. In Ontario, these damages are capped at $10,000.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian HR Reporter.