Deaf worker terminated due to ‘inconvenience’

You’d probably be fair in thinking that a deaf, gay Aboriginal man can have a hard time getting a break, but Darryl Wesley seems like the type of person who doesn’t let obstacles get in his way. Nonetheless, when he was terminated from a landscaping job in North Bay, Ontario, after six weeks of work, he was deeply hurt by how the employer had treated him.

In April 2011, Wesley applied for the job with a Grounds Guys franchise owned by Shawn Wilson. A sign-language interpreter assisted Wesley at the interview, and Wilson agreed that when working they would communicate by writing notes. Wesley started work in May, and an interpreter joined him to assist with his training. Wilson didn’t think the interpreter was necessary and sent him home. Wesley’s disability and ethnicity were clear, but he didn’t tell anyone that he was gay. Of nine workers, he was the only Aboriginal.

Impatience or intolerance?

Things went well for some time, and he worked about 50 hours per week. Eventually, however, Wesley noticed that some of his co-workers were impatient when they had to communicate with him. He noticed them swearing or complaining before writing him instructions.

Then at the end of May, about four weeks after he started the job:

Wilson made sexual gestures towards [Wesley] and some sexual and homophobic comments to him in front of six other employees, who laughed. Specifically, he gestured that the applicant liked to perform blow jobs, called him a “cock sucker,” and wrote in the note pad that the applicant was “gay,” a “shitty worker,” and “must eat poop in a box.” [Wesley] felt ashamed and embarrassed.

Abrupt termination for ‘good worker’

A few days later, Wilson told Wesley to finish his shift early and scheduled him for fewer hours over the following days. The next week, Wilson fired Wesley, citing a loss of contracts. He wrote:

You are a good worker. I just have no work for you because of contract loss…. I have to lay off 6 people…. You and 5 others…

However, as he was leaving the worksite, Wesley saw all of the others still working.

Discrimination and harassment charges

Wesley was very upset and had to visit a crisis worker several times. He also missed payments on a number of bills and had some services cut off. He looked for work right away, but couldn’t find anything until September. He filed a complaint with the Ontario Human Rights Commission on November 23, 2011, alleging that the employer had harassed and discriminated against him with respect to employment on the grounds of race, colour, ancestry, ethnic origin, disability, sexual orientation, and sex.

Six months later, in May 2012, the employer responded, denying the allegations. In September, the employer notified the tribunal that it was in bankruptcy proceedings. Wesley persisted with his application, even as another year passed. In July 2013, Wilson notified the tribunal that he had resigned from the North Bay Grounds Guys franchise, the company had closed down in April 2012, and no one from the company would attend a tribunal hearing.

No response from employer

The tribunal nonetheless scheduled a hearing for January 2014 and sought responses from Wilson and Wesley. The employer did not attend and, as a result, Wesley’s evidence went unchallenged.

The tribunal found that, on a balance of probabilities, the employer did harass Wesley based on his sexual orientation and this harassment amounted to discrimination:

Wilson’s comments and conduct were specifically disparaging towards gay men by characterizing being gay and sexual acts between men as insults, and reducing the identity of gay men to sexual acts.

Since Wilson was the owner of the company—a “directing mind”—the company itself was liable for the damage caused by his harassment.

‘Little effort to accommodate’

In addition, the tribunal found that Wesley’s deafness was the main cause of his termination, and the employer made little effort to accommodate Wesley:

Although the [employer] initially met its procedural and substantive obligations to accommodate the applicant’s disability-related needs by communicating with him by way of writing in a note pad, when that mode of communication became frustrating and less effective, rather than exploring other options, such as bringing back the ASL interpreter (whom, I would note, Mr. Wilson sent home on the training day), Mr. Wilson simply laid off the applicant. This constituted a failure to accommodate the applicant’s disability-related needs up to the point of undue hardship, and was discriminatory.

However, the tribunal found no evidence that the employer terminated Wesley because he is Aboriginal or gay.

$33,000 in damages

The tribunal ordered the employer to:

• Pay Wesley $8,200 for lost income from the date of his termination in June 2012 to the time he obtained another job in September
• Pay Wesley $25,500 for the injury to his dignity, feelings and self-respect
• Provide Wesley with a positive letter of reference, within 14 days of the decision
• Read the Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, complete the commission’s online training module on human rights and provide copies of the certificates of completion to the applicant

This is all despite the fact that the company is no longer in operation. Of course it remains to be seen whether Wesley ever sees any of this award, but if he doesn’t, it could lead to years of headaches for Shawn Wilson.

Conclusion

Employers hardly need to know that the behaviour exhibited in this case was discriminatory, but they should be aware that the Human Rights Tribunal can order them to pay damages and perform other actions despite not being present at a tribunal and despite not even operating any longer.

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Adam Gorley

Editor at First Reference Inc.

Adam Gorley is a copywriter, editor and researcher at First Reference. He contributes regularly to First Reference Talks, Inside Internal Controls and other First Reference publications. He writes about general HR issues, accessibility, privacy, technology in the workplace, accommodation, violence and harassment, internal controls and more.

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