2013-07-27
Daniel A. Lublin
The Globe and Mail
Canadian employers have historically misunderstood their human rights obligations and their potential legal exposure for violations. But that may be changing quickly. A rash of recent eye-catching cases at human rights tribunals has given employers much more reason for concern.
Unlike in court, a human rights judge can make any award, other than legal fees, to remedy discrimination. The list includes extraordinary powers such as mandatory reinstatement with back pay – sometimes years after an employee's departure – general damages for discrimination, wage loss recovery, public interest remedies, human rights training, and forced sensitivity courses. For all of these reasons, employers must beware.
Failing to investigate
Even if an employee is not discriminated against, human rights tribunals will find liability when an employer mishandles a discrimination complaint. This is what happened to Aldeen Morgan, a furniture installation scheduler working at the downtown Toronto office of Herman Miller. Mr. Morgan asserted that he was being treated like a "black slave" after he was told to fetch a box of liquor from the trunk of the president's car. Believing he was mistreated by the company and its president, and that it was because he is black, Mr. Morgan openly complained. A month after his complaint, he was fired.
Mr. Morgan immediately launched a significant human rights lawsuit claiming discrimination, arguing his termination was in reprisal for his complaint. At the recent trial, the company attempted to cover its tracks. But adjudicator Geneviève Debané was not convinced. She found that once Mr. Morgan complained of discrimination, the company had an organizational duty to investigate and to take positive action. Instead, the decision-makers simply turned their heads and came up with an excuse for the termination so it appeared unrelated to his complaint. But it was not unrelated, it was because of his complaint.
Mr. Morgan was awarded 14 months' pay – after only three years on the job – and general damages for discrimination. The company and its now-former president were also ordered to undergo human rights training.
The irony is that Adjudicator Debané did not find Mr. Morgan had been mistreated, until the company fumbled his termination. In human rights court, this amounts to "reprisal," which gives adjudicators extraordinary powers to award damages, such as human rights training, that regular courts do not award.
Reinstatement
Many employees seek reinstatement as a remedy for discrimination, in addition to damages, but they seldom follow through with that request, for fear of actually having to return. However, in a shocking human rights decision released in March, an employee of the Hamilton-Wentworth District School Board, Sharon Fair, was ordered reinstated nine years after her termination, along with back pay and lost benefits that totalled nearly $500,000. She said she'll return to work.
The employee was fired after a three-year stint on the board's long-term disability plan after developing generalized anxiety disorder. However, before she was fired, the board refused to offer her jobs that became available that she said she could have performed. This was a significant failure to accommodate a disability, according to the human rights adjudicator who heard the case.
Broadcasting cases and general damage awards
When Jessica Maciel was fired from a hair salon named Fashion Coiffures immediately after disclosing she was pregnant, a human rights tribunal found that her termination was due to her pregnancy. She was awarded $35,000 for lost wages, benefits and "punitive" damages.
The decision, while not novel, should give employers pause for two reasons. First, the Human Rights Legal Support Centre, an Ontario government-sponsored program that argues human rights cases for free on behalf of employees, sent out a mass press release broadcasting the decision. Employers previously did not have to concern themselves with negative public scrutiny as a result of their names appearing on the wrong side of a press release – until now.
Second, the broad panoply of potential damage awards for human rights violations considerably increases the scope and unpredictability of litigation at human rights tribunals. Ms. Maciel's case was a perfect example. Despite having worked for only one day, she was awarded $35,000 in general damages, which is considerably more than a civil court would have awarded her if she had elected to pursue her claim as a wrongful dismissal lawsuit instead of as a discrimination complaint.
Charade hearings
In another recent case, a provincial human rights tribunal elected to proceed with a "trial" against a California company instead of ordering an adjournment, even though its local lawyer did not turn up for the hearing at the last minute. The company was unable to defend itself, but the tribunal forged ahead and accepted all of the allegations made by an ex-employee, awarding him more substantial damages than he likely would have received if he had won a real trial.
I was hired to conduct the appeal. In my view, the tribunal knew that rendering this decision would not stand after an appeal but it proceeded anyway, with the goal of sending a strict warning to employers – especially foreign employers conducting business in Canada – about the unfettered might of human rights tribunals and their willingness to send a message, even if it's wrong. If that was indeed the goal, this tribunal was successful.
Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. He can be reached at Dan@canadaemploymentlawyer.com
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