Lewis Waring, LL.B., Articled Clerk, Editor, First Reference Inc.
In a recent British Columbia Human Rights Tribunal ruling, an employee’s two co-workers were found to have discriminated against him when they uttered racial slurs during a physical altercation at a staff party. As the discrimination occurred during a work event and was connected to ancestry, place of origin, religion and race, the employee was protected by the British Columbia Human Rights Code. As a result, the employee was entitled to damages, which the two co-workers were liable to pay.
The employee and his two co-workers worked for a British Columbia taxi company. The incident involved an employee and two of his co-workers. During a staff party, the employee became involved in two physical altercations with two co-workers. The employee and the two co-workers were members of the employer’s board of directors. A power struggle amongst minority and majority groups on the employer’s board of directors existed at the time of the incident. The employee was part of the minority group on the Board and the two co-workers were part of the majority group.
Although the employee and the two co-workers had been involved in two altercations at the staff party, only the second altercation involved discrimination under the Human Rights Code. During the second altercation, the employee was standing in the lobby area when one of his co-workers ran toward him and attacked him, resulting in both ending up on the floor. The employee got on top of the first co-worker, and the first coworker said, “Save me from this [slur] guy.” Then the second co-worker joined the fight saying, “Yes he is a [slur] kill him.” The first co-worker then said, “Kill this [slur],” and the second co-worker said, “Yes, he’s a [slur] beat him up.” According to the employee, the two co-workers said these phrases three or four times in Punjabi.
The two individuals discriminated against the employee in violation of the British Columbia Human Rights Code based on his ancestry, place of origin, religion and race when they both used the slur against him during a physical altercation at the staff party. As a result, the two individuals were ordered to pay $3,755.81 to the employee.
One of the purposes of the British Columbia Human Rights Code is to ensure that an employee’s work environment provides them a climate of understanding and mutual respect, where they are equal in dignity and rights. This includes protection against discrimination in an employee’s physical place of business, at the hands of their co-workers and in front of their co-workers at events organized by their employer, regardless of what capacity they attend that location or event in.
The events at the staff party were sufficiently connected to the employee’s employment such that he was protected by the Human Rights Code. The staff party occurred at the physical offices of the employer, where the employee interacted in his employment with the operational staff of the employer on a regular basis. The two individuals were both co-workers of the employee and they had been for almost two decades.
In assessing the severity of the discrimination that had taken place, the Tribunal took into account a number of factors. First, discrimination in this case was a single series of slurs that occurred over a short period of time. Those slurs did not continue for a long period of time or occur repeatedly outside of the second altercation.
Second, the discrimination, in this case, involved two individuals making discriminatory slurs toward the employee during a physical altercation that the individuals initiated. When a person initiates a physical altercation and then makes discriminatory slurs during that interaction, it is more severe than when a person makes such slurs without the element of violence. At the time of the discrimination, the employee was part of a minority group, and the two individuals were part of a majority group on the Board, which had the power to make decisions that could negatively impact the employee’s employment. However, the individuals alone did not have any power over decisions regarding the employee’s employment. The employee’s social context included that he was an immigrant to Canada who came from a place where he experienced caste discrimination. A part of why the employee moved to Canada included that he and his family could live without caste discrimination.
Third, the employee experienced shock and embarrassment immediately after the discrimination, and feelings of insult, humiliation, embarrassment, worry and death for at least a few weeks after the discrimination. In summary, the discrimination was short in duration but involved violence which exacerbates its severity of it. The employee was not in a position of powerlessness in relation to the two individuals. However, his history of caste-based discrimination in India intensified the severity of the impact he experienced regarding the discrimination. The employee provided evidence that his dignity, feelings and self-respect were impacted negatively but that evidence was vague, and he did not provide enough evidence to show those impacts lasted more than a couple of weeks.
This ruling illustrates the risks involved in work events that occur outside of the workplace. While these acts of discrimination did not occur during working hours, they involved colleagues that were socializing only because the employer brought them together in a work-related space. With the addition of intoxicants such as alcohol, work events intended to build camaraderie and boost morale can become venues for inappropriate and discriminatory behaviour. In this case, pre-existing tensions boiled over into hateful and discriminatory acts that breached an employee’s right to a respectful and safe workplace.
Employers are right to encourage social interaction among their workforce. Doing so brings a great opportunity for colleagues to establish real bonds that can make the workplace a more enjoyable and efficient place for all. However, it is crucial to understand that work parties and social events outside of working hours are protected under human rights legislation. Employers are responsible for ensuring that work parties and social events are discrimination-free environments or risk serious liability. Although the employer itself was not targeted in this ruling, this ruling serves as a good example of how liability can arise even from the best intentions.