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
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
Norton Rose Fulbright is a global legal practice. We provide
the world's pre-eminent corporations and financial institutions
with a full business law service. We have more than 3800 lawyers
based in over 50 cities across Europe, the United States, Canada,
Latin America, Asia, Australia, Africa, the Middle East and Central
Recognized for our industry focus, we are strong across all
the key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia,
Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South
Africa (incorporated as Deneys Reitz Inc) and Fulbright &
Jaworski LLP, each of which is a separate legal entity, are members
('the Norton Rose Fulbright members') of Norton Rose
Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein
helps coordinate the activities of the Norton Rose Fulbright
members but does not itself provide legal services to
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should be
sought about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).