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Human Rights Tribunal of Ontario: the “Code” matters, not social norms

social normsThe recent decision in George v. 1735475 Ontario Limited addresses the issue of a poisoned work environment and social norms.

The applicant was a subcontractor who filed an application with the Human Rights Tribunal of Ontario alleging discrimination with respect to employment because of race and colour. The applicant self-identified as a Black African-Canadian. [i]

The applicant alleged numerous incidents where he was subjected to racial slurs that created a racially poisoned work environment and/or constituted racial harassment in breach of the Code.

The matter

During the short period of time in which the applicant worked for the respondent, the applicant alleged that the following comments were made by the respondent, his boss at the time.

“Worthless nigger”

“You make me sick”

“Niggers can’t get nothing right”

“Nigglet”

Some of this language and behaviour was corroborated by witness testimony, a co-worker, who indicated that he had heard similar language from the respondent in regard to the applicant.

The respondent, under testimony, denied most of the allegations. He did admit to using the term “nigglet”, stating that this term is used as a nickname for a labourer regardless of the colour of the labourer’s skin. He testified that his use of this term was not personal, but just “job site macho-ism”. The respondent also denied knowledge that the term derived from the word “nigger”.[ii]

The respondent, of East Asian ancestry, indicated that he had been called derogatory names on the construction site and that it was simply the atmosphere of the environment in which he worked. Of note was the instruction of the respondent to the workers that they may be subjected to racial comments, and if so to “let it run off them like water off a duck’s back.” [iii]

Analysis

The Tribunal in their decision wrote:

…if I were to accept Mr. Seto’s evidence at face value on this point, I nonetheless find that the term “nigglet” is an extremely offensive racial slur. The term “nigglet” is a derivation of the term “nigger”, and is used to refer to a Black child. In my view, the connection between the terms “nigglet” and “nigger” is readily apparent, and ought reasonably to have been known by Mr. Seto, despite his protestations to the contrary. Even if the term “nigglet” is used in the construction industry to refer to general labourers, it is my view that the adoption of this racial slur to the construction context plays on the stereotypes of general labourers being simple-minded and useful only for menial work, like a Black child.” [iv]

In regard to the racial comments and how to best address them from others, the Tribunal noted that the respondent’s own personal approach didn’t reflect the law of the province and was not consistent with the respondent’s responsibilities as an employer.

Decision

The Tribunal found that the applicant had been subjected to a racially poisoned work environment and that the applicant’s race and colour was a factor in the respondents’ decision to terminate his employment, which are both contraventions of s. 5(1) of the Code: [v]

5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Remedies

Among other things, the applicant was awarded $20,000.00 as compensation for injury to dignity, feelings and self-respect. The respondent was also ordered to take a Human Rights training course.

Takeaway

Although there may be social norms at play, a business owner would do well to continue to update and implement workplace and human rights policies on an ongoing basis, otherwise, they may be liable for any breach of the “Code”, whether intended or otherwise.


[i] George v. 1735475 Ontario Limited para. 7

[ii] Ibid., para. 16

[iii] Ibid., para 19

[iv] Ibid., para 44

[v] Ibid., para 81

Related articles:
The “G” word: Brooks v. Total Credit Recovery Limited

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Kevin Sambrano, Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more
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