Overt acts of racial discrimination are thankfully not as plentiful as in the day of, for example, the Jim Crow South in the United States. This of course does not mean that racism does not exist. It simply takes more subtle forms.
As a result, seldom when reviewing a major employment decision such as an employer’s failure to hire or promote or its decision to dismiss an employee will a human rights tribunal be faced with direct evidence of racism as a reason for the employer’s action. In recently overturning the decision of a human rights tribunal in Ontario, the Ontario Divisional Court has reminded us that race need only be a factor in a workplace decision to dismiss an employee, in order to taint the decision in its entirety. Motive to discriminate is irrelevant.
In Smith and Mardana Ltd. (c.o.b. Mr. Lube) et al.,  O.J. No. 377 a tribunal appointed under the Ontario Human Rights Code (the "Code") had denied Smith’s complaint that his dismissal was tainted by racism. In addition, despite the fact that the tribunal found that Smith was subjected to racial harassment and a poisoned workplace, it dismissed his claim for compensation for mental anguish because the harassment "was not wilful or reckless". The tribunal came to this conclusion notwithstanding that Smith’s acting manager had referred to him as "Kunta" and other black employees as "Chicken George", individuals in Alex Haley’s famous book of the 70’s Roots. Another employee had challenged Smith’s authority by saying "two hundred years ago, we would have told him what to do".
In reversing the decision of the tribunal, the court first held that on the face of the evidence, the tribunal’s failure to provide a reason for its finding that the employer was not wilful or reckless was an error of law. It therefore set that decision aside and awarded $10,000 for mental anguish.
Then, in addressing the issue of the decision to dismiss Smith from his employment, the court said:
It may also be helpful to bear in mind that the Code is remedial legislation, aimed at remedying the effects of discrimination, not focussed on punishing the individuals involved in discriminatory practices. It is not the motivation or knowledge of the employer that is an issue: it is the effect of the discrimination on the complainant.
The court noted that the tribunal appeared to consider the issue of motivation, which is irrelevant in establishing discrimination. Further, the court read the tribunal’s decision as requiring that racism be the reason for the discriminatory act, rather than simply one of several factors. The court stated:
Where termination occurs within a poisoned work environment, a proper consideration of whether the termination was discriminatory requires that it be examined in the context of the poisoned work environment…on this record, a finding that race was a factor is not only available, but in our view would have been made if the tribunal had not assessed the evidence with a view to determining the existence of racial motivation, but had assessed the evidence to determine whether race was a factor in the termination.
The record of the proceedings before the tribunal had been accidentally destroyed. In the circumstances, the court substituted its view that race was a factor in the termination of Smith’s employment and awarded an additional $25,000 for lost wages.
The Smith case is a reminder to all of us that the fact that a visible minority employee is hired and promoted does not mean that he/she cannot be the victim of discrimination. Further, discriminatory conduct may be found to exist on the basis of circumstantial evidence and regardless of motive. Employers are well advised to dust off their harassment and discrimination policies and to remind their employees of the importance of adhering to them.
If you do not have a harassment and discrimination policy or feel that your existing policy should be reviewed and updated, please contact any member of our Employee and Labour Relations group.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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