'They didn't take the incident seriously enough, and they didn't view it as a complaint of discrimination or harassment'
A recent decision by the Human Rights Tribunal of Ontario reminds employers that they can be held liable for employee actions, even when that action is just one word.
The word in question – “b*tch” – was found by the tribunal to be discriminatory based on sex, and the employer was ordered to pay the complainant $300. A relatively low amount, yes, but as Zoya Alam, employment lawyer with Pallett Valo in Mississauga, explains, under slightly different circumstances, the incident could be much more costly, and not just financially.
“Even though the award is small, there's now a decision out there that says this company discriminated against one of its employees. So, I think from a reputational perspective … it's still an impactful decision,” Alam says.
She adds that the short tenure of the employee was also a factor: “This was one incident. This employee was only employed for a week, so if the employee was working for many years, and there was a pattern of conduct like this, the damages award could be higher.”
Derogatory slur not seen as discriminatory
The case involved two warehouse employees of Kuehne+Nagel Inc. in Mississauga, who started work as forklift drivers on the same day in November 2019.
In her statements to the tribunal, the complainant described how during the course of that shift, the male employee, Tresvone Dietrich-Graham, drove his forklift in an unsafe manner near her, essentially blocking her path with his machine.
A small altercation ensued, ending with Dietrich-Graham calling her a “b*tch.”
The woman complained to the supervisor, who ordered both employees to submit written statements of the event. Although the woman said in her statement that “He called me a bitch”, only the health and safety aspects of the incident were addressed, and the derogatory comment was not escalated or investigated.
As Alam outlines, the failure by the supervisor to recognize the comment as discriminatory is where the employer went wrong.
“When it comes to discrimination, employers can be held what's called ‘vicariously liable’ for the actions of their employees,” she says – crucially, this holds true even when the employer wasn’t aware of the discrimination complaint, which is what happened in this case.
“Even though it's an action of their employee, the organization or the employer, the company, could also be held liable for that individual employee’s actions, if it's done during the course of their employment.”
Employer liable for representative employees’ behaviour
The supervisor was found to be a representative of the organization, Alam explains, therefore it was the employer’s responsibility to ensure they were trained and aware of what constitutes discrimination.
It was also the employer's responsibility to conduct the investigation into the discrimination, as a means of ending the unsafe work environment.
“Some employers may think that they're not responsible for comments made by an employee, but in cases of discrimination, an employer can be made responsible for, or can be liable for, any discriminatory act or comments an employee makes,” says Alam.
“This is because under the Ontario Human Rights Code it makes space [for that].”
The more senior the employee and the more responsibility, the more representative of the company they will be viewed by a tribunal – meaning preventative measures such as training are in the purview of the employer, she says.
Training employees on discriminatory language
Since the woman employee’s discrimination complaint wasn’t elevated to human resources or upper management, an investigation was never conducted, and when she was terminated shortly afterward, she alleged reprisal for her complaint as the reason for being let go.
“One of the issues here was [the supervisor] didn't recognize the derogatory term as a discriminatory comment,” Alam says.
“So, I think through training, that would have been helpful. The supervisor may have been better equipped to be able to recognize that this is a discrimination issue, or even a harassment issue, depending on the context.”
Another factor that led to the reprisal claim against the employer was the apparent lack of knowledge of the discrimination incident at the time of termination. The human resources professional who conducted the termination told the tribunal that she was not made aware of the employee’s complaint until well after the fact.
“Because Mr. Dietrich-Graham acknowledged in his written statement that he was driving too fast and promised not to do it again, the incident was concluded and there was no further action,” the decision outlined.
“[The HR professional] said that from her recollection, both parties laid claim against the other for not following health and safety, which is supported by the written statements. She said she viewed this as a health and safety issue, not a discrimination and harassment issue.”
Avoiding reprisal and discrimination claims: employer lessons
The employer was ordered by the Ministry of Labour to conduct an investigation, which Kuehne+Nagel claimed was their first knowledge of the worker’s discrimination complaint. But regardless of the findings of that investigation, it was too late to be effective, Alam points out.
Employers are expected to maintain a discrimination-free work environment, and any failure to meet this expectation can result in significant liability, she says; “There could be other contexts where there could be breaches of the occupation of Health and Safety Act under similar circumstances, or breaches of other legislation, so the damages awards could be higher.”
Commonly used derogatory terms can pose legal risks for employers, which is why training around discrimination is so important so supervisors and managers know when to take complaints seriously.
“They didn't take the incident seriously enough, and they didn't view it as a complaint of discrimination or harassment,” says Alam. “They took it as a dispute between the two employees, so not necessarily an incident that they connected as a discriminatory act or something that they thought was harassment.”
