Employer to Pay $70,000 + for Terminating an Employee Who Made UNFOUNDED Allegations of Discrimination

Posted: August 4, 2013 in Reprisal
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Businessman

Employers can be liable for reprising against an employee who makes an allegation of discrimination in the workplace – even if the allegation is unfounded.

The Human Rights Tribunal of Ontario recently released its decision in Morgan v. Herman Miller Canada Inc. Aldeen Morgan worked for Herman Miller Canada Inc. from 2007 until 2010. Morgan alleged that his employer had discriminated against him on the basis of his colour by assigning him demeaning tasks, inappropriately disciplining him and ultimately firing him for complaining about the mistreatment he had been experiencing.

Vice-Chair Geneviève Debané found that Morgan had failed to establish that his employer had discriminated against him on the basis of his colour. The allegations of discrimination were unfounded, however Vice-Chair Debané found that Morgan genuinely believed his employer had infringed his Code rights.  Debané found that Herman Miller had failed to address the complaint, and rather terminated Morgan because of his allegations. In doing so, Debané found that Herman Miller had reprised against Morgan contrary to the Code and ordered in excess of $70,000.00 in damages.

This decision has received substantial criticism because the decision “awards significant human rights damages to an individual who had not been discriminated against in any way”. It has been called “disturbing” in a recent article by an employment lawyer. Another blogger stated:

In our time, this is what “human rights” has come down to …. punishing his employer not for treating him unfairly, but for refusing to kowtow to his threats…

Protecting employees who raise genuine concerns in the workplace related to human rights is not disturbing. What would be disturbing, in my opinion, is to allow employers to terminate employees who genuinely believe they have experienced discrimination in the workplace and who have had the courage to come forward and voice their concerns. Employers have a duty to investigate. In the absence of malice or ill intent in making the complaint, employees should be protected from reprisal. Vice-Chair Debané came to the proper conclusion in this decision.

Case Citation: Aldeen Morgan v. Herman Miller Canada Inc. and Corrado Fermo, 2013 HRTO 650

Employer Calls Migrant Workers “Monkeys” and then Fires Employee Following Complaint

Posted: August 4, 2013 in Race, Reprisal
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Wealth Disparity

In 2009, Adrian Monrose came to Canada under the Seasonal Agricultural Workers Program to work for Double Diamond Acres Ltd. During the course of his employment, Monrose and his fellow migrant workers were referred to as “monkeys” by persons in authority at Double Diamond. Monrose did something that migrant workers typically do not do (due to the significant power imbalance between employers and migrant workers) – he complained to management.

A couple of weeks later his employment was terminated. Following a hearing, the Human Rights Tribunal of Ontario concluded that Monrose was fired, at least in part, because he had complained about the “monkey” comment. Vice-Chair David Muir awarded Monrose $3,000.00 for damages to feelings, dignity and self-respect, stating:

Amongst the factors that I have considered in making this assessment was the applicant’s evidence of how it affected him to be referred to as a monkey by a supervisor and an owner of the company. I have also considered the context in which these incidents occurred, a greenhouse occupation in front of a number of other racialized migrant workers…

Vice-Chair Muir awarded a further $15,000.00 to Monrose for losses associated with his right to be free from reprisal, stating:

I have accepted…evidence…of the unique vulnerability of migrant workers and their understandable reluctance to stand up for their rights. The applicant did so in this case and paid a significant price for his having done so.

Monrose also received lost wages for the remainder of his contract that he would have received had he not been terminated (12 weeks), and Double Diamond was ordered to develop appropriate human rights policies and ensure that all employees with supervisory responsibilities complete human rights training.

Case Citation:    Adrian Monrose v. Double Diamond Acres Limited and Jeffrey Carreiro, 2013 HRTO 1273

Employer Held Responsible for Racial Stereotypes – Even Without Specific Knowledge Of or Intention to Act Upon Stereotype

Posted: July 21, 2013 in Race
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Racism

The Ontario Human Rights Code protects employees from adverse treatment on the basis of their race. This includes racial stereotypes that may subtly influence decisions, even where the employer is unaware of their influence.

Adams v. Knoll North America Corp.

In Adams v. Knoll North America Corp.[i], a 2009 decision of the Tribunal, an Applicant a self-identified black Applicant became upset at his supervisor and raised his voice and yelled in the workplace. The Applicant’s supervisor felt that the Applicant had lost control and as a result the supervisor felt threatened.

The Applicant was suspended for three-days, and a pre-condition for the Applicant’s return to the workplace was that he undergo anger management counselling through the employer’s assistance plan. The Applicant refused to partake in anger management counselling and his employment was terminated.

The Applicant brought an Application to the Tribunal alleging that he had been discriminated against on the basis of his race. The Tribunal considered whether the Applicant’s race was a factor in the decision to require anger management counselling and found that on a balance of probabilities the employer’s conclusion that he could become violent in the workplace based on one incident of raising his voice and yelling was influenced by the discriminatory stereotype that black men have a propensity to turn to violence.

The Tribunal noted that racial stereotypes can subtly influence decisions, without knowledge or intention. The Tribunal stated:

We have come to understand that the application of racial stereotypes that Black men are prone to violence and criminal behaviour can lead to a greater monitoring and scrutiny of their behaviour. This heightened scrutiny may involve an overreaction to their behaviour when involved in situations that pose challenges for those in authority and this too, can form part of the differential treatment they experience…

The scrutiny itself may be unintentional. The impact of being more highly scrutinized must be examined from the perspective of the racialized person and not from the perspective of those who do not experience it.

CONCLUSION

Employers, landlords, and service providers (including police officers) can be found to have discriminated for decisions that are based, at least in part, on racial stereotypes – even if unintentional. It is important that decision-makers remain aware of the influence of stereotypes and take action to ensure they do not form a part of their decisions.

END NOTES

[i] 2009 HRTO 1381

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