Human Rights in Employment: Do You Need a Tune Up?
One clumsy – and unintentional – remark could result in a violation of human rights. How can managers stay vigilant?
Most businesses know the basics when it comes to human rights. Forbidden as discriminatory in hiring or managing: Decisions based on race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, or age.
In my experience, businesses don’t usually intend to discriminate against employees or job applicants. Intention, however, is not required for an employer to be found guilty of discriminatory practises. A couple of decisions from last year highlight how easily a clumsy remark can be seen to single out an employee on grounds protected by human rights laws – in these cases, race, ethnicity, and religion.
"Loss of dignity" human rights violations
In Dhamrait v JVI Canada, two employees were awarded damages for “loss of dignity” because a supervisor made comments about the employees’ use of Punjabi in the company lunchroom. The employees complained that they were humiliated when, on a few occasions, their supervisor suggested that they should use English when talking to each other, and otherwise drew attention to the fact they were speaking Punjabi. (It should be noted that language is not a protected ground under the human rights legislation, and the supervisor in question did not dispute that the employees had a right to speak Punjabi in the lunchroom.)
In the end, the tribunal found that the supervisor’s comments constituted “differential treatment” based on race and ethnic origin, and thus constituted discrimination under the Human Rights Code, which entitled the employees to damages.
Racial discrimination
In the second decision, Ali Tahmourpour v. Canada (Royal Canadian Mounted Police), the Federal Court of appeal upheld a Human Rights Tribunal’s findings that Mr. Tahmourpour, a trainee at the RCMP’s training facility was subjected to discriminatory remarks. The remarks consisted of a statement made by a sergeant to the trainees that no jewellery was to be worn in physical training class except for Mr. Tahmourpour, who would be permitted to wear his religious pendant. Mr. Tahmourpour stated the comments were made in such a manner that resulted in unwanted attention from other trainees who asked about his religion and the reason he wore his pendant.
While the court accepted the sergeant’s evidence that the comments were made in a neutral manner, it confirmed that the comments constituted discrimination. Mr. Tahmourpour was identified as being different from the rest of the trainees on the basis of his religion, and they subsequently treated him differently. The two employees in the Dhamrait case and Mr. Tahmourpour had other, more serious complaints against their employers: they claimed that racially-motivated decisions led to layoff (Dhamrait) and failure to pass the training program (Tahmourpour). But for those more serious concerns, these individuals may never have launched their complaints.
The takeaway for managers is this: Be vigilant in avoiding comments that draw attention to an employee because of a trait protected under the human rights legislation. No one is perfect – and most of us suffer from “foot in mouth” syndrome at some point. If it happens to you, never underestimate the power of an apology, and make sure you take steps to make amends.
This blog is written by Nicole Byres of Clark Wilson LLP and made available by BCBusiness to provide general information on employment law, and is not a substitute for competent legal advice from a lawyer licensed to practice in your jurisdiction. Neither the reading of this blog nor the sending of unsolicited comments or emails creates a lawyer-client relationship with the writer or Clark Wilson LLP.
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Great article - this is
Submitted by SurreyGuy45 (not verified) on Fri, 2011-01-21 15:31.