No prejudice in Canada, you say?

Not long after his boss, Rob Neal, referred to him by the slave name Kunta Kinte, Mark Smith, a black male, was out of a job. That was the start of his 10-year legal odyssey.

Smith was employed by a Mr. Lube franchise for nearly three years. While receiving a string of promotions, he was subjected to racial slurs by his co-workers. In one instance, one of the people who reported to him challenged his instructions, commenting, “Two hundred years ago, we would have told him what to do.”

Compounding the insults, Smith often clashed with Neal. But rather than resolving the conflict, which was exacerbated by Neal’s racist attitude, the owner, Don Strynadka, pinned the blame on Smith, threatening him with dismissal.

When Smith was finally terminated in August, 1995, he was told it was because of a lack of work. But, not surprising to Smith, only two weeks later, a white employee was transferred from another location to replace him. His letter of termination arrived only three months later, citing as the reason for dismissal an incident in which Smith had allegedly refused to assist an employee in servicing a customer.

Lodging a complaint with the Ontario Human Rights Commission, Smith charged that he was the victim of racial discrimination.

Seven years later, in 2002, a human rights tribunal dismissed Smith’s complaint. Although Smith’s work environment was racist, it found the decision to terminate was not motivated by race. After all, noted the tribunal, why would the very people who hired Smith, who were impressed by him, who promoted him, and who accommodated his school schedule, suddenly make a decision against him based on his race? This was an approach often used in the past. If the people charged with racism, gender discrimination etc. had hired or promoted the very employees they were accused of discriminating against, the charge would invariably fail.

Smith appealed to the Ontario Court of Appeal. It was wrong for the tribunal, ruled the court, to seek evidence of a racist motive or intent behind the termination. Rarely do employers admit to racist leanings. The real issue was whether the employer’s actions had a discriminatory effect on Smith. In the context of his racist work environment, the termination was clearly discriminatory. This was clearly established by the change to the reasons given for Smith’s dismissal, the quick replacement to fill his position, and the three-month delay in providing his termination letter.

As well, the employer did not offer Smith an opportunity to defend himself against the allegations. His immediate supervisor, who knew about the incident, recommended against the dismissal. Finally, two other higher-ranking white employees were punished less severely than Smith for more serious infractions. The court proceeded to award Smith $35,000 in damages, including $10,000 on account of mental anguish.

The court’s message is clear: When an employer becomes aware that an employee is being victimized because of race or any other legally prohibited ground of discrimination, its subsequent actions against that employee will be immediately suspect.

Sound preventative action taken by employers can reduce their exposure to extended human rights proceedings. This should include:

1. Senior management must openly commit itself, in writing, to a harassment-free and discrimination-free workplace.

2. As a sign of its commitment, an employer should institute a workplace anti-harassment policy.

3. Educate managers and staff on the requirements of the Human Rights Code.

4. Introduce a complaint process that is known and accessible, as part of the policy.

5. Reiterate that racism is not acceptable and will result in termination for cause.

6. Distribute the policy among staff.

7. Ensure that a staff person is trained in human rights issues so any complaints can be effectively resolved internally.

8. Any complaints of racism should be dealt with swiftly and the resolution documented.
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If you, or someone you care about, is dealing with employment law issues in the Toronto, Ontario Region, contact Lang Michener LLP.

This article is taken from an interview with Howard A. Levitt,Employment Lawyer at Lang Michener LLP, a Toronto, Ontario Employment Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.