EMPLOYERS’ RESPONSIBILITIES

Employers and service providers are responsible for discrimination that occurs in their establishments whenever they know, or should have known, about it. As the following cases show, employers and service providers have a responsibility to do what they can to prevent discrimination by implementing and publicizing workplace anti-discrimination policies and procedures, and by training staff about human rights. If discrimination does occur, employers and service providers can continue to fulfill their responsibilities under the Canadian Human Rights Act by responding promptly and effectively to the situation.

Pay attention to workplace behaviour

Racist jokes, name-calling, and differential treatment were commonplace at a work site of a federal government department. When a member of the department complained to the Canadian Human Rights Commission about the way he was treated because of his race, colour, and origin, the employer acknowledged that there was a serious problem at that work site and indicated that action was being taken to ensure a work environment free from harassment.

The employee who filed the complaint, a Canadian citizen of East Indian origin, had been with the department for three-and-a-half years. He was continually harassed about his skin colour and race. Some comments were subtle and others overt; sometimes the treatment was public and demeaning. Co-workers said that he “couldn’t take a joke” and was oversensitive; the employee argued that he should not have to put up with racist jokes. His immediate supervisor, who completed his performance appraisals, was one of his most consistent harassers. His performance appraisals were negative, and he was eventually transferred out of the region.

After the employee filed his complaint, the department sent several employees from that region for anti-harassment training. In a conciliated settlement of the complaint, the department agreed to send the remaining staff for training, to remove negative performance appraisals from the employee’s file, and to give the employee a letter of apology. It also agreed to pay him $10,000 in general damages.

Make sure employees know about policies (Rodovanovic v. VIA Rail Canada Inc., 26 C.H.R.R. D/149)

When two VIA Rail employees became involved in an altercation, one pushed and shouted at the other, a Yugoslavian immigrant, saying he was a “... damned deportee who should go back where he came from,” and other racially based insults. Both men were given demerit points and fired because of the incident. Bozidar Rodovanovic complained of his co-worker’s racist comments to him, but the company took no action. When the Canadian Human Rights Tribunal heard the case, the members concluded that Mr. Rodovanovic had indeed been discriminated against by being subjected to derogatory comments related to his national origin, and that the employer did not take reasonable steps to prevent the act or to mitigate its effect. Although VIA Rail had an anti-discrimination and anti-harassment policy, it did not make sure that employees were aware of the policy. And management essentially ignored Mr. Rodovanovic’s report of the racist comments made to him, because the company was focusing on discipline for the physical altercation between the workers. These failings meant that VIA Rail had not exercised due diligence to prevent the discrimination or to mitigate its effects.

VIA Rail paid $1,500, with interest, to Mr. Rodovanovic as compensation for humiliation, and apologized to him for the discrimination. Through an internal grievance, it had already decided to change his punishment from “dismissal” to “suspension.” The tribunal also encouraged VIA to be vigilant and attentive in the future when employees are accused of discriminatory acts.

Investigate promptly and properly (François v. Canadian Pacific Rail Ltd., 9 C.H.R.R. D/4724)

Phil François, a Black employee of Canadian Pacific Rail, filed a complaint with the Canadian Human Rights Commission alleging harassment because of his race and colour. Among the incidents he reported was one in which his locker and its contents were destroyed with black paint.

When CP Rail became aware of the incident, Mr. François’ immediate supervisor was told to find out who was responsible. He was unable to identify the perpetrator, so he asked the CP police to investigate. The police were prepared to lay criminal charges, but were unable to discover the culprit. However, two employees, who were responsible for similar racially motivated incidents that were discovered during the investigation, were warned that the company would not tolerate such actions in the future.

The Canadian Human Rights Tribunal that heard the complaint concluded that CP Rail had met the requirements of the Act and had done everything possible, so it could not be held liable for the incident. The Tribunal did not order any further remedy. Among the evidence for its conclusion:

CP Rail did not consent to or condone the incident. It “... acknowledged throughout that it was reprehensible and unacceptable to the Company,” which saw the incident “as criminal behaviour.”

CP Rail did everything it could to prevent discrimination. It “had a clear policy to prevent discrimination … [which was] communicated to its employees and [was] to be acknowledged in writing from time to time by supervisory personnel …”

The employer also did everything possible after the discrimination occurred to lessen its effect, by undertaking a thorough investigation and reprimanding employees who participated in other incidents that were discovered during the investigation. The company also compensated Mr. François for damage to his property.

The employer’s attempts to deal with the harassment apparently worked: “... similar incidents have not occurred since.”

Take prompt and effective action (Hinds v. Canada, 10 C.H.R.R. D/5683)

Leon Hinds was a Black employee of the Canada Employment and Immigration Commission (CEIC). Through the department’s internal mail, Mr. Hinds received an anonymous form entitled “Employment Application for Niggers.” The form contained questions that Mr. Hinds found offensive, humiliating, vicious and discriminatory. He complained to his supervisor, and was led to believe that CEIC was conducting an investigation of the incident. Later, after filing a complaint with the Canadian Human Rights Commission, he learned that no investigation had taken place. This single incident was enough for the Canadian Human Rights Tribunal that heard the case to conclude that Mr. Hinds experienced harassment because of his race.

The tribunal members wrote that employers have a duty to take prompt and effective action when they know, or should know, of possible harassment in the workplace:

The employer’s response should bear some relationship to the seriousness of the incident itself.... To avoid liability, the employer is obliged to take reasonable steps to alleviate, as best it can, the distress arising within the work environment and to reassure those concerned that it is committed to the maintenance of a workplace free of harassment.

The tribunal members found that the employer had not fulfilled its duty to react quickly and appropriately to a harassment complaint. Nor had it done everything it could to prevent the act or to lessen the effects of the harassment after the fact; it failed to carry out a real investigation and failed to deal sensitively with the effects of the incident on Mr. Hinds. In addition, although Mr. Hinds had written to the Minister of the department, she did not reply. The Minister and Deputy Minister, as well as the supervisor, were found to be at fault in their handling of the case. The tribunal noted:

Unfortunately, CEIC’s inaction did more damage since it left the impression with those concerned that this form of harassment was not even worthy of the commitment of investigative resources in the absence of any readily apparent clues. One gets the sense that the matter was treated as though it was considered a harmless joke to which Mr. Hinds overreacted and that it would be best if the whole thing was simply forgotten.

In compensation for the harassment, Mr. Hinds received $4,000 for hurt feelings and loss of self-respect, interest on this amount, and a letter of apology from the CEIC.

Act quickly to end discrimination

An employer that acts quickly and effectively to end discrimination and prevent it from happening again is likely fulfilling its responsibility under the Canadian Human Rights Act. In one Canadian Human Rights Commission investigation, evidence showed that as soon as the claimant told her manager that her supervisor had made unacceptable comments about her colour (Black), origin (African) and religion (Muslim), the manager stepped in. The manager told the supervisor that the company would not tolerate these comments; she told the claimant to come directly to her with any work difficulties; and she offered to conduct a formal mediation between the two employees. The claimant refused mediation, saying she did not think it would do any good.

When the claimant filed her human rights complaint with the Commission, the company agreed to give her a letter of apology, which it had not yet done. Because it had already dealt seriously with the complaint, it did not pay any damages, costs, or other financial compensation.

Prevent future discrimination

In settling a human rights complaint, an airline agreed to take several steps to prevent future discrimination in the workplace. One of the airline’s security personnel filed a complaint with the Canadian Human Rights Commission after several instances of derogatory comments and differential treatment at work. White colleagues made remarks about “damned immigrants” in front of the claimant, who is Black, and other Black colleagues. They made fun of various immigrants’ accents, and commented on the smell of the food that Black colleagues brought to work. Managers were aware of these things happening, but did nothing.

On one occasion, the claimant was disciplined differently from a white co-worker. The two guards were screening and checking bags at the x-ray machine when a toy gun went through, unnoticed by the guards. The claimant was sent for re-training, but his colleague was not.

The airline denied harassing the claimant, and said it had held several meetings to address the allegations of racial harassment. Still, under the settlement it agreed to distribute brochures on harassment and human rights to all employees, and to send all managers for human rights training. It also agreed to pay the claimant $2,500 for hurt feelings, and to give him a letter of apology.

REMEDIES

The purpose of the Canadian Human Rights Act is not to punish people who have discriminated, but to end discrimination, and to restore people who have suffered from discrimination to the position they would have been in without the discrimination. Awards ordered by the Canadian Human Rights Tribunal or arrived at in conciliated settlements are designed to right the wrongs that have been done, and they take various forms, reflecting the damage suffered and whether the employer responded appropriately to the situation.

Examples of the remedies that have been provided to victims of discrimination include:

• an oral or written apology from the harasser and/or organization;
• provision of a letter of reference;
• removal of negative performance appraisals from the employer’s file;
• correction of inaccuracies in the personnel file of the claimant;
• compensation for lost wages;
• severance pay;
• provision of a retirement allowance and/or pension package;
• support in applying for a disability pension;
• provision of goods or services which were denied;
• provision of a job or promotion which was denied;
• payment of legal costs incurred by the claimant;
• payment for personal or career counselling;
• compensation for lost benefits such as sick leave; and
• compensation for hurt feelings.

End discrimination, make a public apology (Grover v. National Research Council of Canada, 18 C.H.R.R. D/1)

In Dr. Chander Grover’s human rights complaint against the National Research Council (NRC), discussed earlier, the discrimination did not stop when Dr. Grover filed his complaint. In fact, it seemed to get worse. In prescribing a remedy, one of the first things the tribunal ordered the NRC to do was to stop the discrimination against Dr. Grover. To ensure that such discrimination would not happen again, the tribunal ordered the NRC to consult with the Canadian Human Rights Commission for a thorough review of its human rights program and policy.

A formal, written apology was also necessary, said the tribunal, for the “demeaning and devastating” treatment Dr. Grover had suffered. The tribunal hoped this apology, to be published in the NRC’s Sphere magazine, might reassure Dr. Grover and other employees that the kind of treatment he endured would no longer be tolerated in the workplace. The NRC was ordered to apologize to the organizers of a conference who had invited Dr. Grover to present a paper (his managers had cancelled his trip and embarrassed him greatly). The aim of these measures was not to punish those who had discriminated, but to fulfill the purpose of the Canadian Human Rights Act to end discrimination and provide relief to its victims. Without these remedies, as well as a management appointment and financial compensation, the tribunal felt that the goals of the Act would not be realized in this case.

Promote an employee whose career was damaged by racism (Canada v. Uzoaba, 26 C.H.R.R. D/428; Uzoaba v. Canada, 26 C.H.R.R. D/361)

A Classification Officer with the Correctional Service of Canada (CSC), Dr. Julius Uzoaba, was discriminated against because of his race and colour. Dr. Uzoaba worked with inmates to develop and recommend programs for them and to prepare reports for the National Parole Board, among others. He was one of the first Black Classification Officers in the CSC.

Certain inmates, including some who had never met him, made negative comments about his work and signed a petition asking that he be taken off the job. A series of anonymous calls began, with the caller using racist names and swearing at Dr. Uzoaba. CSC officials knew that there were groups among the inmates who held overtly racist views. They heard that a threat had been made against Dr. Uzoaba, but did not inform him of it, a choice that the Canadian Human Rights Tribunal later called “shocking.” The day after the threat, an inmate assaulted Dr. Uzoaba.

In evaluating Dr. Uzoaba’s work, his managers relied on the statements and actions by inmates, which were partly motivated by racial bias; managers used this material in giving him negative evaluations, and insisted that he no longer work with inmates. He was unable to find other suitable employment, and was without a job for several years. After an investigation, the case was heard by a Canadian Human Rights Tribunal, which found the CSC had discriminated against Dr. Uzoaba. CSC managers should not have relied on racist comments by inmates or used these comments as evidence of poor work performance. By relying on these comments in his official performance evaluation, the CSC itself discriminated against Dr. Uzoaba. This tainted evaluation then followed Dr. Uzoaba and interfered with his securing new work, thus perpetuating the discrimination. The tribunal said that CSC management did not take effective action to protect its employees from racial harassment by inmates or staff members; it should have investigated and supported Dr. Uzoaba. Management’s response was “wholly inadequate” and unfair.

As a remedy, the tribunal ordered that Dr. Uzoaba be rehired, but at a level higher than his previous job. Based on the evidence, it was reasonable to conclude that he would have been promoted if the racism had not been a factor. It also ordered that the CSC apologize in writing, that Dr. Uzoaba receive three years’ lost wages, and that he receive $5,000 (at the time, the top amount allowed by the Canadian Human Rights Act) for injury to his feelings and self-respect.

In reviewing the case, a Federal Court judge agreed with the tribunal that Dr. Uzoaba be awarded a job at the higher level. The Attorney General had argued that this remedy conflicted with the Public Service Employment Act, which contains specific provisions for promotions. The Court ruled that the Canadian Human Rights Act takes precedence over the Public Service Employment Act and other legislation, and allows the tribunal to make such an award when the evidence supports it, which it did in this case.

Reimburse lost wages

Lost wages made up the bulk of the settlement to the supervisor of a cleaning service hired by a federal government department. The cleaning service supervisor, of El Salvadoran origin, said that a manager with the department harassed him. The manager, who was his contact in the department, continually made fun of his accented English, verbally abused him, and swore at him, often in front of the cleaning staff. This public abuse humiliated him. In a final humiliation, the cleaning service fired the supervisor because the manager complained that he did not speak fluent English.

Along with more than $45,000 for lost wages and interest, the supervisor received $2,485 for injury to his self-esteem and a letter of apology. Following the complaint, the department pledged to post its anti-harassment policy in a prominent place, and to send the manager accused of harassment on a human rights training course.

In addition to the settlement with the government department, the supervisor received $500 and a letter of regret directly from the manager who had harassed him.