Every person in Canada is legally entitled to be free from discrimination in various aspects of their daily life, including services, accommodation, and employment. The grounds on which a person may complain of discrimination in employment are delineated in the Human Rights Code to comprise a variety of bases, including but not limited to disability, sex, gender expression, creed, and age. Discrimination in employment may also include the creation of a poisoned work environment.

In this blog, we explore employment discrimination based on age and a poisoned work environment, including how such discrimination is defined, the circumstances in which it may arise, and the remedies that may be awarded to compensate a victim. 

Employee Terminated After Only Weeks of Employment

The case of Tenthorey v IMS Incorporated involved a complaint alleging discrimination in employment based on, among other things, age and a poisoned work environment. The complainant was 53 years old when she was hired by the President and CEO of the respondent employer to act as his executive assistant in February 2019. 

Two weeks into her employment with the respondent, the complainant’s boss advised her that she was doing such a good job that he would give her a raise of several thousand dollars. Given this praise, the complainant was understandably shocked when, only days later, the employer handed her a termination letter stating that the complainant was “too senior” for the employer’s needs and that, as such, the employer had decided to sever the relationship. 

Throughout the duration of her employment with the respondent, the complainant alleged that she had endured multiple instances of discrimination, including comments by her boss wondering what she would look like in 10 years, suggestive comments of a sexual nature and a generally hostile environment fostered by a mercurial boss who regularly yelled and screamed at employees. Given the comments in the termination letter about the complainant’s “senior” status, the complainant applied to the tribunal for compensation for the discrimination she had suffered at the hands of the employer based on her age and sex. Because of the poisoned work environment, she had been forced to endure while working for the respondent. The complainant alleged that her age was the deciding factor in her termination, as indicated in the employer’s termination letter. 

How Discrimination in Employment May be Proven

Section 5 of Ontario’s Human Rights Code prohibits employment discrimination on several grounds, including, but not limited to, disability, age, gender, creed, and sexual orientation. Section 7 of the Code prohibits discrimination on the basis of sex. 

Any person who brings a complaint before the Human Rights Tribunal bears the onus of proving, on the balance of probabilities (i.e., to a certainty of 51%), three things: 

  1. That the applicant possesses a characteristic that is listed in section 5 of the Code as protected
  2. That the applicant has experienced some sort of adverse or disadvantageous consequence 
  3. That the applicant’s protected characteristic was a factor in the adverse treatment experienced by the applicant

If the complainant successfully demonstrates all three criteria, then the burden shifts to the respondent employer to demonstrate a valid, reasonable, non-discriminatory reason that justifies its actions. 

Regarding allegations of a poisoned work environment, the tribunal has noted that a work environment may be considered poisoned in circumstances where an employee is essentially expected to put up with harassment or discrimination as a condition of their employment. This does not mean that a poisoned work environment is created every time a person experiences a single instance of discrimination, but rather requires a sustained, pervasive series of events that effectively amount to a poisoned workplace culture.

Was the Complainant Discriminated Against Because of Her Age?

Concerning the allegations of discrimination based on age, the tribunal noted that the CEO’s comments, wondering what the complainant would look like, could be considered discriminatory based on both age and sex. Moreover, the rest of the employees in the office were in their thirties, even though the CEO regularly referred to them as “little girls” or “boys,” whose terms were childish and derogatory. The evidence also demonstrated that previous executive assistants hired by the employer had all been at least a decade younger than the complainant. Several other respondent employees testified that they disliked the complainant’s mothering of fellow employees, in that the complainant had asked employees to respect shared spaces such as the kitchen and the bathroom facilities. The tribunal found these comments to be suggestive of age discrimination. 

Furthermore, the employer had provided the complainant with a termination letter that indicated that she was losing her employment because she was too senior and had too much experience to accommodate the role with the employer. The tribunal was satisfied that this amounted to blatant discrimination based on age, given that the employer had explicitly advised that the complainant’s employment was terminated because she had too much experience in the absence of any disciplinary issues.

Had the Complainant Endured a Poisoned Work Environment?

As for the allegations of a poisoned work environment, the tribunal noted that the complainant had become uncomfortable in her work environment almost immediately after she began to work for the employer, given that the CEO would regularly berate employees in a loud and derogatory manner. Moreover, the CEO regularly asked young women employed by the company if they were more interested in their boyfriends than working and if they would be interested in dating him. The CEO also regularly lost his temper and vented to the complainant about the conduct of others in the office in a loud, abrasive and aggressive manner, all of which contributed to her extreme discomfort in the workplace. 

Given all of the evidence, the tribunal was satisfied that the CEO had created a sexually charged atmosphere that was poisoned by his angry outbursts and that acceptance and endurance of this behaviour had become a condition of employment with the employer. The tribunal defined the workplace environment as a culture of intimidation that amounted to sex discrimination in the workplace through the creation of a poisoned work environment. 

Complainant Awarded Substantial Damages as a Result of Workplace Discrimination

In the result, the tribunal was satisfied that the complainant’s age, sex and maturity were “intimidating to [the CEO] because … she raised her concerns about his toxic behaviour”. In these circumstances, the complaint was allowed, and the employer was ordered to pay the complainant $13,000 in compensation for lost wages and a further $25,000 in compensation for injury to dignity, feelings and self-respect, both of which awards were subject to pre-and post-judgment interest.

Contact Haynes Law Firm for Assistance with Your Workplace Discrimination Claim

If you’re facing employment discrimination, you need experienced legal guidance to navigate the complexities of human rights claims. The Haynes Law Firm in Toronto offers compassionate and strategic support to individuals across Southwestern Ontario. Our team is experienced in employment law, providing seasoned counsel on all aspects of your case. Schedule a confidential consultation today by contacting us online or by phone at (416) 593-2731