The Human Rights Tribunal of Ontario has ordered a man who used a racial slur to pay $1,000 in damages to a colleague who overheard the comment in a workplace lunchroom.
The Human Rights Tribunal of Ontario has ordered a man who used a racial slur to pay $1,000 in damages to a colleague who overheard the comment in a workplace lunchroom.
The case involved an applicant, described as a “Black woman with Trinidadian ancestry,” who was employed on a casual, part-time basis as a cleaner.
In November 2014, the tribunal heard the woman was in a lunchroom with about 10 other employees of the same company. The woman overheard another colleague use the n-word, asking another employee “What was your last [n-word] job?”
The woman complained to a supervisor and the company launched an investigation, which substantiated the man’s use of the slur. He was suspended for five days without pay.
In January 2018, the HRTO further ordered the employee to pay damages to the woman over injury to her “dignity, feelings and self-respect.”
“I am satisfied that the use of the term is inherently discriminatory and must be reasonably expected to be offensive and hurtful to any Black person. Indeed, it would be reasonably expected to be offensive to any person, regardless of race or colour, but especially so for a Black person,” said Brian Cook, vice chairman of the tribunal, in a ruling made in January 2018.
Tanya Walker of Walker Law PC in Toronto says she thinks the amount the woman received was “very low,” given what she experienced.
“If I were called that name, I don’t think $1,000 could justify [it] or make me feel better. I have been called that name before and it makes you feel very anxious and stressed and brings you back to a time that you shouldn’t think about when you’re working,” she says.
The woman filed the complaint in October 2015 against the company, later adding the other employee as a respondent in February 2016.
The HRTO decision noted that the incident was “taken seriously by the corporate respondent” and “a prompt investigation” was done. In September 2016, the woman entered into a settlement with the company, but she chose to continue her complaint against the co-worker. The company was not named in the decision.
The applicant was represented by Rani Khan, legal counsel with the Human Rights Legal Support Centre in Hamilton, Ont. No one appeared on behalf of the respondent at the tribunal.
Khan says one of the implications of the case is that, when it comes to discriminatory comments or conduct in the workplace, employers and employees can be held liable “both jointly and severally.”
“In this case, particularly, it was the employee [who was held to be liable],” she says.
She also says the case speaks to the issue of vicarious liability.
“The type of conduct that this employee engaged in — a discriminatory comment during the course of his employment — would normally be covered under vicarious liability of the employer; however, he was found [to be] separately liable,” she says.
“An employee won’t necessarily be immune to liability even where their conduct falls under what’s characterized as vicarious liability, [such as] comments or conduct in the course of their employment,” she added.
Khan says the case is also noteworthy because the applicant was not the object of discrimination and happened to overhear it in the workplace.
“That’s an interesting dynamic. We haven’t seen it too often at the Human Rights Tribunal,” she says. “It’s generally the individual who is the object of discrimination or who has had the discriminatory comment directed toward them that have enforced their rights under the Code.”
In addition to the damages, the woman also wanted the tribunal to order her co-worker to take training in human rights. However, the ruling said that, because the woman had settled with the company, there were no longer means to order the company to make sure the co-worker received the training.
“In this case, the corporate respondent is no longer a party to the Application. It cannot therefore be directed to ensure that the personal respondent receives training,” said Cook in the ruling. “However, I find that it is appropriate for the Tribunal to send a copy of this decision to the corporate respondent so that it is aware of the findings of the Tribunal about a matter affecting its employees.”
Andrew Monkhouse, of Monkhouse Law in Toronto, says it’s more common for people to pursue claims against their employer, not other employees.
“I think for a client who’s experienced this, it shows that the HRTO is a valid option for pursuing it, and, obviously, this person was able to get what they asked for — they asked for $1,000, the tribunal awarded that. So, I think that that’s beneficial,” he says.
Walker also says companies need to have mechanisms established for dealing with complaints.
“[Companies] should take it seriously and investigate it right away,” she says.
