The expanding scope of employer liability under the Human Rights Code

February 28, 2014 Kevin Sambrano, Sambrano Legal Services Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll

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The recent human rights decision of Morgan v. Herman Miller Canada Inc. examines the issue of employer liability under the Human Rights Code of Ontario. What happens when there are allegations of discrimination but no findings?

The applicant, Aldeen Morgan, worked as an installation scheduler with the corporate respondent, Herman Miller Canada Inc. (Herman Miller). After Mr. Morgan’s employment was terminated, he filed a human rights application alleging discrimination and harassment based on his colour. Mr. Morgan alleged that he was assigned tasks outside of his job description, including menial tasks, and experienced work-related incidents which he considered to be race related. Mr. Morgan in part characterized his role as that of a “black slave”. When he complained to management about his treatment, his concerns were effectively ignored. Mr. Morgan also alleged that his termination from Herman Miller was as act of reprisal.

At the in-person Hearing, the adjudicator concluded that Mr. Morgan had not established on a balance of probabilities that he was assigned menial and demeaning tasks because of his colour.[1] The adjudicator agreed with the testimony of the respondent who stated that due to the nature of the job and the small size of the company, everyone had to “chip in”. It was also established that what was being asked of Mr. Morgan was not different from what would be asked of anyone in that position.

Did the employer discriminate against Mr. Morgan?

The adjudicator found no evidence that the employer had discriminated against Mr. Morgan. Nonetheless, it was found that Herman Miller had breached the “Code”. When Mr. Morgan had initially brought these allegations to the attention of his superiors, Herman Miller failed in its obligation to act reasonably in addressing the applicant’s allegations of Code-related harassment and discrimination in an adequate and appropriate manner.[2] As such, Herman Miller was found liable.

Did the employer reprise against Mr. Morgan?

The adjudicator cited Noble v. York University, 2010 HRTO 878 and the 3-point test in establishing a claim of reprisal under the “Code” [3].

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the “Code”; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

Further, the following principles are relevant. There is no strict requirement that the complainant has filed a complaint or application under the “Code”, nor is there a requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

In other words, an applicant needn’t prove that the discrimination has occurred in order to benefit from the protection of s. 8 of the “Code”. Nor does the applicant need to file a formal complaint or application to the Tribunal, as long as the complaint falls within the scope of the “Code’, and the complainant genuinely holds the belief that the respondent was infringing their Code rights.[4]

The decision to terminate Mr. Morgan’s employment occurred after he had claimed his Code rights. As the employer had not adduced sufficient evidence to justify Mr. Morgan’s termination, the adjudicator found Herman Miller’s decision was in fact an act of reprisal.

Awards

The Tribunal in their findings awarded Mr. Morgan 14 months of lost wages in the amount of $55,799.70, as well as $15,000 compensation for injury to his dignity, feelings and self-respect.

The scope of employer liability under the Human Rights Code is ever expanding due to recent decisions, and due to the expanded grounds of the “Code’ (See Gender identity and gender expression in employment, Vanderputten v. Seydaco Packaging Corp). An employer is responsible for investigating all allegations of harassment or discrimination under the “Code”, as a breach of this responsibility can lead to costly financial consequences.

Kevin Sambrano
Paralegal student
www.sambranoparalegal.com

[1] Morgan v. Herman Miller Canada Inc., 2013 HRTO 650, Para. 25

[2] Ibid, para. 97

[3] Noble v. York University, 2010 HRTO 878, para. 3 – 4

[4] Bertrand v. Primary Response, 2010 HRTO 186.

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Kevin Sambrano, Sambrano Legal Services

Paralegal at Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more