Since 2008 the Ontario Human Rights Tribunal (“the Tribunal”) has had the power to order an employer to pay unlimited general damages to an employee for discriminating against the employee. In short, general damages or discrimination damages are the price an employer must pay for injuring the dignity, feelings, and self-respect of an employee.
Factors to consider when assessing general damages
In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (CanLII), an adjudicator set out two factors the Tribunal should consider when assessing general damages.
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious.
Pregnant employees & disabled employees
In our experience, pregnant and disabled employees generate a disproportionate amount of employment related litigation. There are specific laws that apply to these employees and the application of these laws to specific situations can lead reasonable people to disagree; hence the amount of litigation.
Discrimination damages in connection with pregnant employees
In McKenna v. Local Heroes Stittsville, 2013 HRTO 1117 (CanLII) the applicant, Ms. McKenna, began to work there as a waitress on a part-time basis in March 2011.
She would work between three and five shifts […]each week, or between 60 and 100 hours per month. The applicant became pregnant in July of 2011. She felt fine and kept on working. However, the bar was not doing well. Around November of 2011 there was a change in the management of the bar, and the personal respondent took over as manager. As part of an attempt to revive its flagging business he introduced a new dress code for staff. The applicant spoke to him, raising a concern that the new form-fitting shirts would highlight her already visible pregnancy. The personal respondent agreed that she would not have to wear the new uniform on future shifts. But, with the exception of two further shifts, the applicant was not given any more work.”
In reviewing decisions of the Tribunal where pregnancy was either a factor or the sole reason to terminate employment, I note that to date awards for injury to dignity, feelings and self-respect have generally ranged between $10,000.00 and $20,000.00.”
In this case, the adjudicator concluded the bar and the owners were jointly and severally liable for $17,000 in general damages.
Discriminating damages in connection with disabled employees
In Garrie v. Janus Joan, 2012 HRTO 68 (CanLII) the applicant, Ms. Garrie, identified as a person with a developmental disability. She claimed she was paid less than other employees, an the employer refused to give her an electronic pass card, refused to pay her overtime, and terminated her employment because of her disability.
Recent Tribunal decisions that have considered disability-related discrimination in the context of the termination of the applicant’s employment have generally made awards ranging from $10,000 to $45,000.”
In this case, the adjudicator concluded $15,000 was an appropriate award of compensation for the injury to Ms. Garrie’s dignity, feelings and self-respect.
General damages awards are increasing under the Ontario Human Rights Code however the Tribunal has adopted a more nuanced approach to assessing damages which we believe will result in a broader range of damages in the future.
Doug MacLeod
MacLeod Law Firm: Employment & Labour Lawyers
www.macleodlawfirm.ca/employers
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