Just in case employers needed yet another reason to be careful to ensure that employees in their workplaces treat one another with respect and avoid a “locker room mentality”, the Ontario Human Rights Tribunal has provided one. In Lombardi v. Walton Enterprises, (2012) HRTO 1675 the Tribunal found a corporate employer and Assistant Manager jointly and severally liable for homophobic slurs directed at an employee.
In this case, the employee was subjected to a number of jokes directed to him from the assistant manager. The employee never admitted to being a homosexual but said that the assistant manager would routinely call him a “fag” and/or “gay” or allege he was a homosexual in text messages. The employee raised these issues with senior management but his concerns were dismissed on the belief it was just employees “joking around”. Further, once attacked by the assistant manager, the employee would often counter attack the assistant manager with homophobic comments and racial slurs of his own. Thereafter, the employee got into a physical fight with a co-worker and was dismissed. The employee filed a human rights complaint against both his corporate employer and the assistant manager.
The Tribunal made four key findings:
- The Tribunal held that harassment based on an enumerated ground such as “sexual orientation” could constitute discrimination under the Ontario Human Rights Code. The Tribunal noted that while the employee did not assert he was a homosexual, when homophobic slurs were directed at him like the words “gay” and/or “fag” they were nevertheless discriminatory even if the victim is not a homosexual
- The Tribunal then noted that while the employee responded with homophobic and racial slurs when he was victimized, he did so as a strategy to get his harassers to stop harassing him and he should not be penalized for so doing
- The Tribunal held that the corporate employer should have conducted an investigation into the employee’s allegations when they were made
- The Tribunal held that the employee became aggressive with his co-worker because of the stress from harassment and therefore the termination was not justified
Consequently, the Tribunal ordered the employer to pay lost wages and the employer and the assistant manager to jointly pay $20,000 as damages to dignity and self-worth.
This case underscores the importance of a harassment policy, an investigation procedure and the need for employers to take allegations of harassment seriously and investigate these allegations.
Simon Heath
Principal of Heath Law, Employment Lawyers
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