Given that human rights judges can make any award apart from
legal fees to remedy discrimination, the possibility of an employee
bringing a claim before the Human Rights Tribunal is an important
reason for employers to have employment practices liability (EPL)
coverage. Some of the available remedies at the Human Rights
Tribunal are mandatory reinstatement with back pay, general damages
for discrimination, wage loss recovery, forced sensitivity courses,
and human rights training. This paper will examine Human Rights
Tribunal cases that emphasize the importance of EPL coverage.
Cases Involving an Employer's Failure to
One of the benefits of EPL coverage is that it can protect
employers from Human Rights Tribunal cases involving the
employer's failure to investigate.
In Morgan v Herman Miller Canada Inc.,1 Mr.
Morgan, a black man, was a furniture installation scheduler working
at Herman Miller. Mr. Morgan claimed that he was being treated like
a "black slave" because he was told to get a box of
liquor from the company president's car. A month after Mr.
Morgan complained, he was fired. He launched a human rights lawsuit
At trial, adjudicator Geneviève Debané found that
once Mr. Morgan had made his discrimination complaint, the company
had a duty to investigate and to take positive action. Given that
the company failed to investigate and instead made an excuse for
the termination (despite the termination ultimately being because
of his complaint), Mr. Morgan was awarded 14 months pay after
having only worked for the company for three years. He also
received general damages for discrimination. Not only that, but the
company and its president were forced to participate in human
It is important to note that Adjudicator Debané did not
find that Mr. Morgan had been mistreated until the company failed
to investigate his complaint. In other words, he was awarded human
rights damages despite the Tribunal's holding that he had not
been discriminated against. As such, the case is an important one
for employers to remember in the sense that, even if it is
ultimately found that the employee in question was not
discriminated against, the employer can be penalized for failing to
Cases Involving an Employer's Failure to
Failure to accommodate cases are also ones that can arise when
employers do not have EPL policies in place. For instance, in
Fair v Hamilton-Wentworth District School
Board,2 Sharon Fair, an employee of the
Hamilton-Wentworth District School Board, was ordered to be
reinstated nine years after her termination, in addition to
receiving back pay and lost benefits totalling almost $500,000.
After having developed an anxiety disorder, Ms. Fair had been fired
after three years on the board's long-term disability plan.
Before she was fired, the board refused to offer her available jobs
that she said she could have performed despite her anxiety
disorder. The Human Rights Tribunal held this to be a significant
failure to accommodate a disability.
Another accommodation case that exemplifies why employers should
have EPL policies in place is Maciel v Fashion
Coiffures.3 In that case, Jessica Maciel was fired
from a hair salon called Fashion Coiffures after having worked
there for one day and disclosing that she was pregnant. The Human
Rights Tribunal found that her termination was due to her pregnancy
and Ms. Maciel, despite having only worked at the hair salon for
one day, was awarded $35,000 for lost wages, benefits and punitive
One reason for which employers should be fearful of the
Maciel case is that the Human Rights Legal Support Centre,
an Ontario government-sponsored program that argues human rights
cases on behalf of employees for free, sent out a mass press
release broadcasting the decision. In other word, employers can
face public scrutiny as a result of Human Rights Tribunal
The above cases show the many benefits of EPL coverage for
employers. An employer's failure to have an EPL policy in place
can lead to exposure to a variety of applications from employees,
including damages for discrimination and other violation of the
Human Rights Code.
1. 2013 HRTO 650.
2. 2013 HRTO 440.
3. 2009 HRTO 1804.
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.
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