Canada: Can Post-Employment Conduct Constitute Discrimination?

Is it possible for an employer's post-employment conduct to constitute discrimination?

In BJ Simon and S Simon & Yukon Human Rights Commission v Rhonda Sallows, Owner, White Tornado Cleaning Services, the Yukon Human Rights Board of Adjudication (the "Board") answered this question in the affirmative when it found that an employer's post-employment treatment constituted discrimination under the Yukon Human Rights Act.

BACKGROUND

The two complainants in this case, were sisters. They were First Nations and members of the Tetlit Gwich'in. The complainant Suzannah Simon started working for Rhonda Sallows (the "Respondent") on July 9, 2015 and the complainant Bobbi-Jean, on July 8.

They complainants worked as cleaners and were in a group of about nine, most of whom were women. The complainants stated that their co-workers were alright to work with but when the Respondent showed up, there was a lot of swearing and yelling. On one occasion, when the complainants were on their way to pick up their pay cheques, Bobbi-Jean's cell phone rang, and they overheard the Respondent telling someone that she was waiting for two "stupid-ass bitches" to come pick their cheques. While they returned to work after that incident, both complainants subsequently decided to quit as they did not like the Respondent's attitude. Accordingly, they quit their employment on July 23rd.

When they were not paid their final wages as expected, Bobbi-Jean texted the Respondent inquiring about their wages, on July 27. This resulted in the Respondent sending Bobbi-Jean a string of texts which contained comments like "You FAS kuds [sic]", "And pill poppers", "I have envelopes for you two squaws!".

On July 28, the Respondent also left a voicemail on Bobbi-Jean's phone stating, "I got your envelopes you two squaws... I'm not doing your gong show. Your. All your bullshit. You guys are trouble..."

The complainants filed a complaint with the Yukon Human Rights Commission (the "Commission") on August 7, alleging that the Respondent harassed them in connection with their employment on the grounds of ancestry and sex by referring to them in derogatory terms.

The Hearing

At the hearing, the Commission submitted that the Respondent engaged in a course of vexatious conduct, that the word "bitch" is a gendered pejorative, the term "squaw" is a gendered racist pejorative targeting Indigenous women and that the term "FAS kuds" (which presumably meant FAS kids), was rooted in the racist stereotype that First Nations people abuse alcohol.

The Commission sought damages of $7,500 for each complainant for injury to dignity, feelings and self-respect.

The Decision

The Board concluded that the Respondent had engaged in a course of vexatious conduct on July 27 and 28 and that the name calling by the Respondent was repeated, and abusive in tone and content.

On the issue of whether the vexatious conduct referred to one or more prohibited grounds of discrimination, the Board held that while the word "bitch" could be a gendered pejorative and was quite inappropriate, based on the evidence, it did not constitute discrimination. However, the Board concluded that the use of the word "squaw" and "FAS kuds" was racist, pejorative and unquestionably derogatory and referenced the prohibited grounds of sex and ancestry.

The Board held that although the impugned conduct occurred after the complainants quit their employment, it happened during their dealings with the Respondent in connection with their employment, i.e., as they were trying to collect their final pay and that consequently, it amounted to discrimination.

Considering the relatively short duration of the employment and the harassment, the Board awarded each of the Complainants damages in the amount of $2,500 for injury to dignity, feelings and self-respect.

Takeaways

Generally, claims of discrimination in employment relate to conduct that occurs or occurred, during the employment relationship. However, this decision shows that an employer's post-termination conduct can lead to a finding of discrimination.

While the post-employment conduct must still be "in connection with the employment" of the complainant, for it to constitute discrimination in employment, employers should treat former employees with respect and courtesy as a matter of best practice.

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.