In Yan v 30 Forensic Engineering Inc., 2022 HRTO 649, the Human Rights Tribunal of Ontario (the “Tribunal”) dismissed allegations of discrimination and harassment with respect to employment because of race, place of origin, sex, marital status, age, disability, and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c.H. 19 (the “Code”). It found that the Respondent employer provided a credible non-discriminatory explanation for the termination.
Jia Yan (the “Applicant”) commenced employment with the Respondent on April 10, 2018 in the position of Senior Associate Forensic Engineer. She was terminated without cause approximately 9.5 months later on January 30, 2019. The Applicant identified as a woman who immigrated from China and was older than most of the other employees in the firm. After experiencing interpersonal conflict with one of the juniors on her team, the Applicant emailed the company’s managers claiming that their respective roles and responsibilities needed to be defined. Shortly thereafter, the Respondent became concerned with the Applicant’s ability to meet the expectations of her role. It was recommended that the Applicant be terminated. Ultimately, however, the Applicant remained in the Respondent’s employ and was issued a performance improvement plan (“PIP”). Prior to the PIP being issued, the Respondent had offered up a custom t-shirt with the chairman of the board’s face cropped onto Chairman Mao’s head for an auction. This t-shirt was later retracted by the Respondent.
The Applicant felt that the PIP was unwarranted and rooted in discrimination. She filed an internal human rights complaint on various Code grounds because she felt she was receiving different treatment than others in her role, who were Caucasian and male. The Respondent did not find any evidence of discrimination or harassment during their investigation. They did, however, provide the Applicant with a new supervisor. Following a performance review where the Applicant was advised she needed to improve her collaboration and teamwork, she was terminated without cause. It was at this time that she brought a human rights application alleging discrimination and reprisal on the basis of disability, race, place of origin, sex, marital status, and age (the “Application”).
The Tribunal dismissed the Application. The Applicant failed to establish discrimination based on race, disability, place of origin and/or sex. The Tribunal was satisfied on the evidence that the Respondent provided a credible non-discriminatory explanation for the termination given the challenges related to teamwork that had arisen over the course of the Applicant’s employment and the efforts made to address those challenges.
The Tribunal also considered the Applicant’s allegations around how the Chairman Mao t-shirt auction emails spread stereotypes that Chinese people are rigid, old-fashioned, and inferior. The Tribunal recognized that both the emails and the Respondent’s conduct afterwards displayed insensitivity towards Chinese people. It went on to set out that while “culture” is not a protected ground of discrimination under the Code, the references made to the Applicant’s culture was likely connected to her place of origin, China. As such, it went on to consider whether the Applicant’s place of origin and/or race was a factor in her treatment. It determined that it was not; citing to the abundance of evidence presented in relation to the Applicant’s ongoing performance issues to find that the Respondent demonstrated a credible non-discriminatory explanation for the conduct.
In addition, the Tribunal addressed a series of incidents that the Applicant alleged were discriminatory. The Tribunal dismissed each of these allegations. For example, the Tribunal held that the conversations between the Applicant and her colleagues about her husband and why she did not wear a wedding ring were not discriminatory. Rather, it found that the questions about her husband and wedding ring, more likely than not, amounted to co-workers making appropriate conversation and trying to get to know the Applicant. There was no evidence that management tried to elicit anything about the Applicant or her husband’s background or beliefs.
The Tribunal also rejected the Applicant’s submissions that management’s conduct towards her arose from deep-rooted prejudice against people from China. The Tribunal concluded that the evidence did not establish a link on a balance of probabilities; the Applicant’s place of origin or race was not a factor in her treatment.
Further, the Tribunal dismissed the Applicant’s allegation of discrimination on the basis of disability because she disclosed that she had a shoulder injury and food allergies. The totality of the evidence did not support a finding of discrimination on the basis of disability. The Tribunal agreed with the Respondent that its raising of her not attending a particular event was not discriminatory even if she could not attend the event due to injury. The critical issue raised with the Applicant during her performance review was the Respondent’s desire that she improve on being a contributor; the critical issue was not that the Applicant did not attend one particular event. That was merely used as an example of a teambuilding event that might have helped her become a better contributor. Therefore, even if the Applicant’s disability prevented her from attending the event, the Tribunal found this was not the essence of what led to her evaluation that she underperformed in that area and she was not penalized for failing to attend.
Takeaway for employers
This decision is a helpful reminder of the standard that an applicant needs to meet in order to establish a contravention of the Code. To establish discrimination, an applicant must demonstrate a connection between the purported disadvantage and their purported characteristic on a balance of probabilities. It also serves as an example of where reasonable work direction and performance management by an employer was deemed appropriate and not discriminatory.
By Marco Fimiani and Sarah Bussin
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