Posts Tagged ‘Discrimination’

3d man with dollar symbol.George Berger, an executive assistant to a Toronto City Councillor, brought an application to the Tribunal against the City of Toronto alleging that Councillor Frances Nunziata discriminated against him on the basis of his disability.[i] Berger suffered from adjustment mood disorder and multiple osteochondromatosis (a condition that involves arthritis in the fingers).

Berger commenced a leave of absence for medical reasons relating to his mental disability, which he claimed was related to a poisonous work environment caused by the alleged harassment. Berger requested the opportunity to work for another City Councillor when he returned to work. The City of Toronto argued that it was difficult to transfer executive assistants because City Councillors typically choose their own assistant. The City decided to pay Berger the remainder of his two year contract – approximately 6 months wages.

The Tribunal found that the allegations against Nunziata were not connected to a Code ground and therefore not within the Tribunal’s jurisdiction, however the City failed in its duty to accommodate Berger when presented with a request to be moved to a different City Councillor. The City decided not to explore whether it could accommodate the Applicant’s request, but rather decided to ‘buy out’ his employment. Vice-Chair Kaye Joachim stated:

[The City] failed to take adequate steps to canvass its organization for alternative comparable vacant positions in which to accommodate the applicant. Rather, it chose to resolve the situation by paying out the applicant’s contract.

The corporate respondent argued that the payment of wages on the remaining contract was a form of accommodation. I disagree. The applicant was denied the right to engage in meaningful work for the remainder of his contract. He was also denied the opportunity to seek renewal of the contract in whatever position he was in in November 2006.

In these circumstances, the applicant was essentially “forced” to seek a settlement.

Some will see six months’ pay for a one and a half year employee as reasonable – even generous. The duty to accommodate however required that the City explore accommodating Berger in an alternative position. The procedural component of the duty to accommodate requires employers to undergo a process – the City of Toronto failed to do so in this case. Forced settlements, even with generous sums of money, are not a substitute to the duty to accommodate.

Does this mean that the City of Toronto automatically had to explore placing Berger in an alternative position simply because he provided a medical note?

Not necessarily. The City could have questioned the medical evidence and insisted upon clarification. Medical doctors are not able to dictate accommodation, but rather their role is to provide evidence concerning their patient’s functional abilities and limitations. The City could have challenged the doctor’s conclusions,  but as Vice-Chair Joachim stated – “it was not open to it to do nothing”.


[i] Berger v. Toronto (City), 2011 HRTO 625

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