We recently reported on discrimination claims for federally regulated employees, explaining that such employees could choose to bring a complaint before an administrative body (the Canadian Human Rights Commission) or through the court system.
A similar choice faces employees that are not federally regulated. If they experience discrimination in the workplace, they may register a complaint with the Human Rights Tribunal of Ontario (HRTO) or file a claim through the court system.
This article looks at the process of filing an application with the HRTO. We also look at a recent decision of the HRTO that awarded damages to an employee that was a victim of sex discrimination and harassment that caused her to resign from her employment.
Employers cannot discriminate on prohibited grounds
Under section 5 of the Ontario Human Rights Code (Code), every person has a right to equal treatment with respect to employment without discrimination because of a range of enumerated grounds, specifically race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, a record of offences, marital status, family status or disability.
Further, employees have a right to freedom from harassment in the workplace by the employer, an employer’s agent or another employee because of the same grounds. The Code also contains specific prohibitions against sexual harassment.
Applying to the Human Rights Tribunal of Ontario
If you believe you have experienced discrimination or harassment, one option is to file an application with the HRTO.
There is a voluntary mediation stage, in which the parties may attempt to reach an agreement with the assistance of an HRTO mediator. If this is unsuccessful or one or both of the parties are not interested in trying mediation, the application will go to a hearing.
Similar to a court process, during the hearing, a party can question witnesses and introduce relevant documents as evidence. The parties make arguments about the facts and the law. The HRTO adjudicator decides whether discrimination has occurred and, if so, decides an appropriate remedy.
Employee resigned after alleged abusive and discriminatory conduct
In A.B. v C.D., the applicant employee started working for the respondent and his company in 2007. The employer began a pattern of conduct toward her that she described as abusive and discriminatory.
The applicant explained that the incidents included:
- The employer would disparage her appearance and her weight, and comment that she “waddled” when she walked.
- He once said in front of a customer that he would just get the applicant to “waddle over” and that when she was through, she should “go and sit down like a good dog”.
- She was told to put her hand up to ask to go to the bathroom.
- The employer watched a pornographic movie with another employee and there was joking about sexual behaviours.
- The employer called her an “idiot” on an almost daily basis and also said “no one would hire you, look at you” and “no one would want you looking like that, you can’t even walk, you waddle”.
The applicant resigned numerous times, with the final time in 2014.
Tribunal found employer engaged in sex discrimination and harassment
Adjudicator Reaume explained that the employer did not respond to the applicant’s specific allegations of discrimination and harassment in the workplace. He offered alternative theories about the source of the applicant’s lack of self-esteem and well-being, and said that he treated his employees fairly in a high-pressure industry.
The Adjudicator accepted the applicant’s testimony that she was targeted daily with conduct that was discriminatory, abusive and in some cases, violent. The incidents she described went well beyond good-natured teasing and sexual banter in a workplace, with the Adjudicator saying:
The vulgar and aggressive comments about her appearance, intelligence and work performance struck at the core of her dignity as a woman. She felt that she had no choice but to put up with the respondent’s behaviour if she wanted to maintain her job.
The Adjudicator found that the bullying and harassment the applicant experienced was an abuse of power, exercised in part because she is a woman. The HRTO found that the applicant was a victim of sex discrimination and that her work environment was poisoned by repeated acts of discrimination and harassment by the respondent, causing her to resign from her employment.
Employee awarded lost wages, plus damages for injury to dignity, feelings and self-respect
Adjudicator Reaume awarded the applicant approximately $31,000 in lost income, which was the best approximation of what she would have earned if she remained with the employer for the period between when she was forced to resign and when she started a new position.
The Adjudicator also awarded the applicant $25,000 in damages for injury to dignity, feelings and self-respect. The applicant felt degraded, humiliated, anxious, depressed and feared for her safety. The applicant’s health was also significantly affected.
Finally, the applicant requested an order that the employer implements policy, education and training programs to establish and maintain a workplace free of discrimination and harassment. The Adjudicator ordered the employer to post copies of the Code cards in the workplace, to complete an online learning course and retain an expert to develop and implement workplace human rights policies and procedures.
Contact Haynes Law Firm in Toronto for Highly Skilled Representation in Employment Discrimination Claims
Toronto employment lawyer Paulette Haynes and her team of employment professionals at Haynes Law Firm work with employees (and employee candidates) who have experienced discrimination in the workplace. The Haynes Law Firm team has worked on both sides of this issue for nearly three decades and is privy to the various tactics used by employers to avoid liability in workplace discrimination matters. To ensure you receive fair compensation or a remedial remedy appropriate for your circumstances, contact the team at Haynes Law Firm. Please fill out the online form or call us at 416.593.2731.