Sheri McConaghie was a sales professional for Systemgroup
Consulting Inc. from September 8, 2009 until her employment was terminated on
March 19, 2012. She was the only female
sales executive with the company throughout her tenure, and worked in a
male-dominated industry. None of that
would be particularly remarkable, nor would it have attracted the attention of
the Human Rights Tribunal of Ontario (the “HRTO”), but for the events leading
up to Ms. McConaghie’s dismissal.
In late 2011, after a new VP of Sales was hired by
Systemgroup, it was announced that the employer would be holding two customer
appreciation events early in 2012. The
first of these events was to be held in conjunction with “Men’s Day” at the
Mansfield Ski Club (where the VP was a member).
While all sales staff were advised that two events were being held, Ms.
McConaghie was not provided a calendar invitation for the event at Mansfield,
nor was she given any details of the event, which was being offered solely to
male staff and certain male customers of the company. The electronic brochure for the event stated
that the event was “A day for Men without Women and Children”, and included the
tag line: “Bring your friends, bring
your acquaintances, just don’t bring your wife!” The calendar invitation that was circulated
also included “massage” and “Hooters Girls” as part of the planned activities.
When one of Ms. McConaghie’s clients brought Men’s Day to
her attention, she addressed her concerns with being excluded from the event to
the VP. He clarified that only
therapeutic massage was being offered and that there wouldn’t be any Hooter’s
Girls in attendance (although they had participated in prior years, selling
raffle tickets to benefit a program for disabled skiers). The employer took the position that there was
nothing objectionable about the males-only event. Not surprisingly, Ms. McConaghie was not
happy with this response, and took the issue up with the owner and President of
the company. However, she did not make
any headway with him either and “agreed to disagree” on the appropriateness of
the event.
Subsequent to raising concerns about Men’s Day, the VP
ceased having one-to-one meetings with Ms. McConaghie, excluded her from a
meeting with a client who would normally fall within the “vertical” she
supported, and eventually ended her employment.
The employer asserted that it had long-standing performance concerns
with Ms. McConaghie and this was the reason for her dismissal.
The evidence before the HRTO did not establish clearly
whether or not the Applicant’s performance was, in fact, improving or
stagnating. However, her performance at
the point of termination appeared to show improvement over the prior year. Moreover, certain workplace issues that were
brought forward by the employer were not significant enough to explain the
decision and timing of the termination.
After lengthy analysis of the evidence, the HRTO concluded that
the exclusion of the Applicant from the customer appreciation event was
discriminatory on the basis of gender, and that the employer’s behaviour after
the Applicant raised concerns with Men’s Day amounted to reprisal, contrary to
section 8 of the Human Rights Code. While the employer could establish that there
were some areas in which the Applicant needed to improve, it had not put the
Applicant on notice that those concerns were critical or that her employment
might be in jeopardy. Looking at the
timing of the decision to terminate Ms. McConaghie’s employment (about 5 weeks
after she raised concerns about the event), and the absence of any other
intervening event that would explain the decision to dismiss her, the HRTO
concluded that the employer had no persuasive explanation to rebut the
inference that the employer was reacting to the Applicant’s complaint about being
excluded from Men’s Day. This view was
also supported by the fact that the Applicant’s VP had effectively cut off
communication with her after she made her complaint, and had excluded her from
meetings that she would have expected to be involved in.
The Tribunal concluded that the Applicant should receive the
lost value of the Men’s Day event ($150), as well as wages for her period of
unemployment (from April 16 to October 8, 2013), and damages of $18,000 as
compensation for injury to dignity, feelings and self-respect, as well as
pre-judgment and post-judgment interest.
While it’s startling that an employer would consider a “men-only”
event appropriate in this day and age (particularly where there is diversity
among one’s staff and customers), the case is a good reminder that employers
still need to be vigilant about the types of events that they sponsor. Where an employee raises legitimate concerns
about how they have been treated, such as an allegation of discrimination, it
will take significantly more than ambivalent performance indicators to
establish that any negative treatment is unrelated to their complaint. Without
compelling evidence, the employer will face potentially stiff sanctions.
If you have further questions about this decision or human
rights in the workplace in general, please do not hesitate to contact Lance
Ceaser.
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