Monday, 30 June 2014

Two Employers Learn Costly Lessons: Significant downside to not properly investigating human rights concerns

Two recent decisions of provincial human rights tribunals highlight the risk that an employer faces in not appropriately addressing and/or investigating an employee’s claims of discrimination in the workplace.  It is not simply enough to have a workplace harassment and discrimination policy.  Unless the employer has procedures to address concerns when they come forward, including protocols for effectively investigating complaints of discrimination and harassment, those policies will not offer much protection.
In Cromwell v. Leon’s Furniture Limited, the Complainant employee, an African-Canadian woman, had been a Sales Associate with a furniture store in Halifax for approximately 4 years.  Over the course of several months, she was subject to multiple disciplines for alleged violations of the employer’s attendance policies, and was the recipient of unwanted comments and name-calling from her manager.  The employee claimed that the manager referred to her as “Condoleeza Rice” or “Contessa”, described her hair as being “wool”, and resolved disputes between the Complainant and a fellow Sales Associate in the other employee’s favour on more than one occasion.  Throughout the period of her employment, the Complainant was in regular contact with the Area Supervisor, with whom she had a “personal relationship”, but the corporate Respondent did not take any effective action to address her difficulties.  Instead, the Area Supervisor routinely advised the Complainant that she needed to take up her concerns with the store manager.  Ultimately, the Complainant reached the conclusion that her career with Leon’s was over when her manager greeted her at her performance review by telling other managers to leave the office, “There’s going to be a lynching”.  Three weeks later, the Complainant resigned, and set out all of the differential racial treatment in a letter to the company.
After determining that most of the racial discrimination alleged in the complaint had occurred, the Board of Inquiry had to assess whether the employer had taken sufficient measures to prevent and address workplace harassment and discrimination.  The company did have policies in place, and following the Complainant’s resignation, an investigation was conducted.  However, the investigation was performed by the Area Supervisor, who never disclosed to Leon’s the nature of his relationship with the Complainant.  The Board of Inquiry concluded that the employer’s policy was inadequate as it did not define “discrimination” or describe the mechanism for addressing complaints.  However, more concerning was the employer’s response after the Complainant’s resignation.  The “investigator” did not take any notes of his initial call with the Complainant, and rather than conduct an interview, he suggested she come in to meet with himself and store management – an offer which she declined.  The Complainant was effectively excluded from the investigation from this point forward.  Statements were obtained from the other managers at the store by the Store Manager (not the investigator), but he did meet with and interview a number of other staff.  Despite corroboration that the “lynching” comment had been made, and that none of the managerial staff present had offered any objection, the investigator concluded that the Complainant had not been subject to any racist behaviour.
At para. 354, the Board stated:
I cannot reasonably conclude than an investigation conducted by a manager who has been in a romantic relationship with the Complainant is reasonable or appropriate in these circumstances.  I find that this conflict of interest impacted the reasonableness of the findings [the manager] made and throws into question the bona fides of those findings.  As well, [the manager] failed to make findings on key aspects of information in the possession of the Respondent respecting the Complainant’s allegations.
Putting aside the conflict presented by the investigator’s relationship with the Complainant, the Board found that there were “significant flaws in the investigation”.  The investigator failed to consider or place weight on relevant evidence, failed to follow up on equivocal answers from witnesses, did not address key allegations, failed to seek information directly from the Complainant, and simply did not seem to understand what discrimination was, placing emphasis on intention over impact.

In the result, the Board of Inquiry awarded the Complainant eighteen (18) months’ wages, less mitigation earnings, and damages in the amount of $8,000.

Where an employer did not even undertake an investigation, before purportedly terminating the alleged victim of discrimination, the outcome was similar.  In Morgan v. Herman Miller Canada Inc., the Applicant had worked for the corporate Respondent for approximately 3 years before his employment was terminated for “cause”.  The employer asserted that the employee’s past disciplinary history, combined with spreading rumours of the company’s demise, constituted cause for dismissal, but still paid out his contractual entitlements.  At the hearing, the employer also alleged that the employee was slated for termination months before his employment actually ended, due to redundancy.  However, shortly before his employment was terminated, the Applicant had brought forward concerns about the assignment of work and other alleged incidents that he claimed revealed racial discrimination.  The complaint , therefore, raised allegations of both discrimination and retaliation.

The Human Rights Tribunal of Ontario heard the case, and determined that none of the conduct that the Applicant complained of amounted to discrimination prohibited by the Human Rights Code.  The employer was able to establish that its actions were either legitimate (due to actual concerns with the Applicant’s conduct) or had been misconstrued.  However, the Tribunal was not satisfied that the employer could justify its termination of the Applicant's employment, particularly on the shifting evidence of its reasons for doing so and having not investigated his complaints. 

At para. 108 of the decision, Vice-Chair Geneviève Debané found:
Instead of dealing with the applicant’s allegations in an appropriate manner, the company chose to terminate the applicant’s employment. I note that the termination letter itself relies on the fact that the applicant was “profoundly unhappy”. I find that this unhappiness was a direct result of the fact that he perceived that he was being treated in a discriminatory manner because of his colour. Although reprisal need only be one factor in the decision to terminate the applicant in order to find that the applicant was terminated contrary to his right to be free from reprisal under the Code, in my view the reasons in the respondent’s termination letter were otherwise pre-textual. This includes the breach of confidentiality that occurred on August 2009 and the comments made by the applicant about Ms. Ingham. A significant period of time had passed since the confidentiality incident and in my view the issue was largely “stale dated” by the time of the applicant’s termination. Further, the applicant was not even disciplined by Ms. Ingham at the time of the comments in relation to her but he was “cautioned”.
While the employer was clearly aware of his claims of discrimination prior to terminating the Applicant, the issue was merely forwarded to the U.S. parent company, and no investigation of his claims was ever undertaken.  Instead, he was dismissed.
For the “organizational failure” of having taken no action to address his complaints, the Applicant was awarded $15,000 in damages and 14 months’ pay as lost income arising from the termination of his employment, despite none of the underlying discriminatory conduct having been proven.

Whether an employer undertakes no investigation or performs a deeply deficient investigation, the outcome is essentially the same:  the employer will have failed to meet its human rights obligations with all of the liability that flows as a consequence.  Allegations of this nature must be dealt with in a timely and meaningful way.  The employer needs to ensure policies are adequate, that complaint mechanisms are effective and well-communicated, and utilize a trained investigator to perform a thorough inquiry.  Anything less will run afoul of human rights legislation, as both of these employers can attest.
If you have questions about dealing with human rights complaints or assistance with investigations, do not hesitate to contact Lance Ceaser.

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