The Ontario Human Rights Tribunal and the Courts have broken new ground in recent months, both in terms of the reach of anti-discrimination laws and the consequences for those who are found in breach. While the vast majority of employers provide respectful and inclusive workplaces, there are exceptions to this rule and sometimes, despite all best efforts, issues still arise.
The following three cases provide a useful reminder of how human rights lawmay impact your workplace:
Due to the prolonged period over which the material events in this case occurred, and the inherent power imbalance between the parties, it is one of the more disturbing to pass through the Human Rights Tribunal. Two sisters, M.P.T and O.P.T., came from Mexico to work at a fish processing plant. Shortly after commencing work, they were subject to unwanted sexual advances from the company's owner, Mr. Pratas.
The sisters commenced a human rights application against both the company and Mr. Pratas. The allegations against Mr. Pratas were numerous and severe. This was further compounded by their occurrence under the constant threat of being sent back to Mexico.
In rendering its decision, the Tribunal accepted the sisters' allegations and found Mr. Pratas and the company jointly and severally liable, ordering over $200,000 in damages - a new high watermark in the Tribunal's jurisprudence, and a signal that damages awards at the Tribunal may be on the rise.
Ms. Partridge worked for Botony for 7 years, first as a Dental Hygienist, then as Office Manager, before being dismissed for cause on July 19, 2011. During the tenure of her employment, Ms. Partridge twice took maternity leave. The second of which ended in July 2011.
During her second maternity leave, Ms. Partridge received a text message from Botony's owner to advise her that upon her return to work, she would no longer be the Office Manager, but would again be a Dental Hygienist. Moreover, Ms. Partridge was told that her working hours would now vary - conflicting with her childcare obligations, and she would be paid less.
Ms. Partridge refused to return to work on the modified terms, and was dismissed for cause. She subsequently brought a court action seeking damages for both wrongful dismissal and discrimination on the basis of family status, pursuant to the Human Rights Code. The Court accepted Ms. Partridge's argument on both fronts. Botony was ordered to pay twelve months of salary, plus an additional $20,000 for its breach of the Human Rights Code.
Partridge should serve as a reminder not only of an employer's obligations to individuals returning from maternity leave but also of the increasing frequency with which human rights claims are being successfully litigated in the courts.
Our final case illustrates that sometimes regardless of how good a workplace may be, a human rights complaint may still arise. In this case, the applicant had sought the assistance of Pro Bono Law Ontario. The Tribunal described the facts as follows:
The applicant sought the services of the respondent to launch a civil suit for wages allegedly owed to him for his reign as Her Majesty the Queen. The applicant has apparently changed his legal name to Her Majesty (first name) the Queen (last name). Although he identified himself to the Tribunal by his previous legal name, he has submitted documentation to the Tribunal that appears to confirm his change of legal name.
The applicant's case was refused by Pro Bono Law Ontario on the grounds that there was no reasonable prospect of success. Nevertheless, the applicant commenced a human rights proceeding claiming discrimination on the basis of disability.
The Tribunal held a summary hearing and determined that even if all of the applicant's evidence was accepted, no sufficient nexus existed between the applicant's claimed disability and the rejection of his request for legal assistance to constitute discrimination. Accordingly, the claim was dismissed.
The preceding three cases provide helpful guidance for employers:
- Implement clear policy and ensure consistent enforcement: If your resources allow, implement an anti-harassment and discrimination policy that satisfies the requirements of the applicable human rights law. Clearly communicate this policy to everyone in your organization. Concomitant with this, institute a neutral internal process by which to investigate and respond to complaints brought pursuant to the policy.
- Liability for employees' actions: Cases such as Presteve Foods, should serve to remind employers that they may ultimately be found vicariously liable for the misconduct of an employee. Accordingly, it is necessary to treat all allegations of discrimination seriously and foster an environment where individuals, from the CEO down, are held to the same standard and treated equally.
- Investigate claims and use rule 19A: If, as a provincially-regulated business, you become the target of a dubious human rights claim at the Tribunal, do two things. First, conduct a thorough and impartial investigation of the allegations to determine their veracity. Second, if the claim remains unfounded, consider using Rule 19A of the Tribunal's procedures - which allows for a summary hearing on whether the claim has a 'reasonable prospect of success'. This approach may help your business achieve an expeditious resolution, rather than proceeding to a full hearing.