“Men’s day” customer appreciation event discriminatory

In McConaghie v. Systemgroup Consulting Inc., 2014 HRTO 295, the Ontario Human Rights Tribunal (“HRTO”) found that an employer discriminated against a female employee on the basis of sex by sponsoring a customer appreciation event that was for men only. The HRTO also found that the employer retaliated against the employee after she complained about the event to her supervisor.

The case is an important reminder to employers to be cautious with respect to the type of events that they sponsor and the importance of record keeping when performance managing employees.

Facts

Throughout her employment, the applicant was the only female sales executive. The employer designed customized computer applications, an industry the HRTO recognized as male-dominated.

The employer sponsored a customer appreciation day that was for men only. The employer paid for male employees and clients to attend a ski event called “Men’s Day”, where the brochure advertised “A Day for Men Without Women and Children” and the tag line was “Bring your friends, bring your acquaintances, just don’t bring your wife!” The employer’s electronic calendar invitation to the event listed planned activities including: “massage” and “Hooters Girls.”

The applicant was not invited to “Men’s Day” because she was a woman, and was informed of the details of the event from one of her male customers. She complained about the event to both her immediate supervisor and the company president. Neither found the gender-exclusive event to be inappropriate.

Following her complaint, the applicant was excluded from important meetings and networking opportunities and eventually her employment was terminated. The applicant filed a claim with the HRTO alleging that her exclusion from “Men’s Day” constituted discrimination on the basis of sex and that her termination (and the events leading up to it) amounted to reprisal for exercising her rights under the Human Rights Code (the “Code”).

Exclusion from “men’s day” was discriminatory

The HRTO found that the applicant’s exclusion from “Men’s Day” constituted discrimination on the basis of sex.

The employer argued that while the applicant was indeed excluded from “Men’s Day” because she was a woman, the exclusion had no adverse or negative impact on her and therefore did not amount to discrimination under the Code. The HRTO found that the purpose of “Men’s Day” was to strengthen relationships between the employer’s sales associates and their customers and concluded that:

By holding a customer appreciation event that excluded the applicant because of her gender, the respondent undercut the applicant’s ability to compete on the same playing field as her male peers. It did so without apparent consideration of how her male clients might perceive her exclusion or how it might damage her working relationships; and it did so in a male-dominated industry. In other words, its behaviour perpetuated the belief that supporting women sales professionals in interacting with clients is less valuable or important than supporting male sales professionals.

Termination was a reprisal

The HRTO held that the employer’s behaviour following the applicant’s complaint about “Men’s Day” constituted a reprisal under the Code.
Immediately following her complaint, the applicant began to be excluded from important meetings and networking opportunities. The employer offered no alternative explanation for these events and as a result the HRTO accepted the applicant’s contention that her exclusion was related to her “Men’s Day” complaint.

The employer terminated the applicant’s employment five weeks after her complaint. The HRTO held that while there was no direct evidence of intent to retaliate, the proximity between the complaint and the termination was sufficient to establish an adverse inference – an inference that the employer could not explain away.

The employer argued that the termination was in response to the applicant’s long standing performance and productivity issues. The employer provided some evidence with respect to the applicant’s performance levels; however, the HRTO felt that it was not enough to substantiate a credible alternative explanation for the termination, especially in light of the timing. Notably, the employer did not have records of ongoing performance management, and the applicant’s sales data at the time of her termination suggested that her performance was improving.

Award

The HRTO awarded the lost value of the “Men’s Day” event ($150 ticket price), wages for the applicant’s period of unemployment, and damages of $18,000 as compensation for injury to dignity, feelings and self-respect.

Employer takeaways:

• Employers need to be cautious with respect to the type of events that they sponsor, particularly where access to the event is limited to certain types of employees or customers.
• Employers should keep detailed records of employee performance management. It is difficult for an employer to demonstrate that a termination is for a legitimate, non-discriminatory reason in the absence of properly maintained performance records. This is particularly relevant in the case of employees who have filed internal complaints – without performance records, employers are vulnerable to an inference that any subsequent discipline or termination constitutes reprisal.

By Daniel Pugen and Meaghan McWhinnie