Canada: Failing To Investigate Allegations Of Discrimination Results In Costly Human Rights Award

In Morgan v Herman Miller Canada Inc, 2013 HRTO 650 ("Morgan"), the Ontario Human Rights Tribunal (the "Tribunal") heard an Application made pursuant to section 34 of the Human Rights Code (the "Code") alleging discrimination and harassment with respect to employment because of colour and reprisal. This decision will be of interest to all employers, as it illuminates the scope of the obligation to take reasonable steps to address allegations of harassment and discrimination in the workplace – including, as a first step, undertaking an investigation of the allegations made.
The employee in Morgan (the "Applicant") was terminated for, inter alia, allegedly leaking confidential information.

The Applicant filed a complaint with the Tribunal alleging that he had been discriminated against on the basis of race, and that his termination constituted reprisal for his complaints about being discriminated against. Amongst other things, the Applicant claimed that he had been assigned menial and demeaning tasks due to his race. In particular, the Applicant testified that he had been assigned work outside of his job description; for example, fetching alcohol from a supervisor's car in preparation for a company party and breaking down cardboard boxes. The Applicant testified that he told his supervisor he felt like he was being treated like a "slave" and that he was specifically being targeted due to his race. Additionally, the Applicant claimed that he was unfairly put on probation for a relatively minor incident, alienated by the Company's management team, and that he had raised a prior human rights issue regarding an email sent about a team of employees alleging that they looked like they were "picked up off a street corner". The Applicant's concerns were never investigated in any meaningful way.

The Tribunal found that the Applicant genuinely believed that he was being subjected to differential treatment due to his colour, and that the company's failure to act reasonably in addressing his Code-related concerns was an "organizational failure", particularly a failure to investigate and address the allegations. Ultimately, the Tribunal determined that the company terminated the Applicant's employment because he raised issues of harassment and discrimination and because he had threatened to take related legal action against the company. The Tribunal exercised its broad remedial authority to compensate a party whose rights have been infringed and awarded the Applicant lost wages for a period of fourteen months, and $15,000 in compensation for injury to his feelings, dignity and self-respect.

This decision reiterates for employers the importance of investigating allegations of human rights related discrimination or harassment. Organizational failures to take such steps could well be viewed as aggravating factors that provide an additional ground for damages should a complaint be made out.

Norton Rose Fulbright Canada LLP

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