Unfair Treatment Not Always Violation of Human Rights

Written by Lewis Waring, Paralegal, Student-at-Law, Editor at First Reference

In Nguyen v Central Stampings Limited (“Nguyen”), an employee’s feeling that an employer’s conduct derived from discriminatory intent due to his sex was not sufficient to obtain compensation for violation of the Ontario Human Rights Code.

Background

The employer was a manufacturer of metal stamping products. The employee had been suspended following an incident in September 2017 in which he used the workplace radio to broadcast his issues with his supervisor. These issues included the employee’s perception that the supervisor had discriminated against him by making an obscene gesture in the workplace. While that gesture was admitted by the employee to have no sexual connotation, the employee submitted a complaint that requested an explanation. The employer held a meeting in order to resolve this complaint, but the employee felt he had not received a sufficient explanation.

The employee’s feeling that his supervisor’s obscene comment had not been addressed by the employer led to him making his broadcast on the workplace radio. As a result of that broadcast, the employee was suspended. Following the suspension, the employee launched an application before the Human Rights Tribunal of Ontario for reprisal under the Ontario Human Rights Code. In other words, the employee argued that the employer’s suspension was a punishment for the employee attempting to preserve his right to be free from discrimination from violation of his human rights.

The main reason that the employee failed to convince the Human Rights Tribunal of Ontario that he had been discriminated against on the ground of sex as a result of the supervisor’s obscene comments was his failure to show that the comments had a connection to his sex. There was no dispute that the employee’s supervisor had made an obscene comment. However, the mere fact that the supervisor had made an inappropriate comment was not enough to show that the employee had suffered discrimination protected by the Ontario Human Rights Code. While an employer should never permit its supervisors to insult or belittle other employees, the fact that such conduct has taken place is not always sufficient to expose the employer to liability under human rights legislation. In this sense, Nguyen shows that human rights legislation is rather limited in scope. Such laws do not protect employees against any and all unfair treatment but, instead, only that treatment which is connected to specific grounds prescribed under legislation such as the Ontario Human Rights Code.

Connecting unfair treatment to a human rights ground

Nguyen exposes the reality that insulting treatment in the workplace is not always discriminatory as defined in human rights legislation. While insulting workers is inappropriate conduct for an employer to engage in, it is not always connected to legislation such as the Ontario Human Rights Code. Human rights legislation is more limited than workers might presume, providing protections only in the case that conduct can be connected to a protected ground. While grounds that may be protected are flexible, it is not true that any conduct that is or may be perceived to be insulting or unfair is protected by human rights legislation. If insulting conduct is not proven to be connected to a ground such as sex, disability, race or any other prescribed under human rights legislation, it will not be a remedy under human rights legislation.

Given the importance of connecting insulting treatment to a prescribed ground, workers must always ensure that any unfair treatment is proven to be a result of a characteristic protected by human rights legislation. Even if an employer has engaged in egregious conduct that is manifestly unfair, that conduct will not result in a remedy for violations of human rights if it is not proven to be connected to a recognized ground. In other words, a worker is not a victim of human rights abuses unless he or she can provide evidence that insulting or unfair conduct from the employer was caused by his or her possession or perceived possession of a protected characteristic.

This requirement of a connection to a human rights ground is crucial to understand for employers. While a supervisor may in some cases engage in completely unacceptable conduct in the workplace, this does not necessarily expose an employer to liability in a human rights tribunal or civil court. Employers are not required to provide compensation for violations of human rights if that unacceptable conduct had nothing to do with a characteristic protected by the Ontario Human Rights Code or other analogous human rights legislation.

The need to prove discrimination beyond perception

The requirement that an employee be able to prove that unfair or insulting treatment is connected to a human rights ground is important to keep in mind when a worker argues that an employer has engaged in discrimination in violation of human rights legislation. While an employee may in many cases feel that an employer’s conduct has arisen due to discriminatory intent, this perception will only result in compensation before a tribunal if it is proven through evidence. Such evidence might include the worker’s testimony, the presentation of witnesses and documents such as emails or audio recordings. While there are a variety of ways such discrimination may be proven, the fact that an employee feels that insulting treatment was the result of their possession of a protected human rights characteristic is not sufficient to obtain damages or other remedies under human rights legislation.

Unfair treatment versus discriminatory treatment

Employers should thus do everything in their power to obtain and preserve a clear record of conversations and other incidents related to employee claims of discrimination. While every legal dispute involves two different versions of events, the version of events that will ultimately be persuasive in a court or tribunal is often the one that is better proven through evidence. If an employer can show that any conduct, even if insulting or unfair, is completely unrelated to an employee’s sex, race, ethnic origin, disability or any other human rights ground, they will likely be protected from liability for human rights discrimination. While unfair or insulting treatment is never advisable, it is important for employers to understand the difference between unfair conduct and discriminatory conduct protected under human rights legislation.