Meeting 32: New Harassment and Discrimination Policy

Summary

Scaduto v. Insurance Search Bureau 2014 HRTO 250

The respondent Insurance Search Bureau (“ISB”) is a document retrieval company that provides a variety of searches to its clients in the following areas: driver; vehicle; property; corporate background; accident benefits, and employment screening. The Chief Executive Officer of the company is Gino Fiorucci. On March 17, 2011, the applicant commenced employment with ISB as an Information Specialist. His employment was subject to a three-month probationary period. The applicant was hired by the office manager Tracey Norman.

ISB has two divisions: the insurance division and the employment background screening division. In the insurance division, the work is divided into three queues. The first queue involves monitoring and responding to incoming e-mails. The second queue involves online searches, and the third queue involves court searches. In addition to the three queues, the insurance division also provides police searches.

The applicant commenced employment in queue 2 and was supervised by Adina Boros. He remained in queue 2 for two to three weeks and then moved to police searches under the supervision of Cheryl Young, who provided feedback to the applicant on how to do his job. On April 27, 2011, Young advised Norman that she was going to have a meeting with the applicant because she was having difficulty getting him to correct his mistakes. Young told Norman that the applicant would not admit that he had made a mistake. Young told Norman that the applicant reminded her of B, a former employee with whom Young had great difficulty working with. The applicant continued to receive negative feedback from Young after the April 27, 2011, meeting.

On May 5, 2011, the applicant asked to meet with Norman. The applicant testified that he disclosed to Norman that Young was mistreating him because of his sexual orientation. Norman testified the applicant did not say anything about his sexual orientation. On May 10, 2011, Young wrote to Norman to complain that the applicant was asking questions that he should know the answers to and was not doing the work he had done several times before. Young suggested the applicant might be better in another section or not with the company at all.

On May 26, 2011, Norman advised Young that she had not met with Fiorucci, but that she still intended to let the applicant go, and on June 6, 2011, Young went directly to Fiorucci to complain about the applicant. She told Fiorucci that she felt like she was working with “[B] #2” and would have to speak to the applicant once a month about his attitude.

The applicant spoke about his problems with Young to another co-worker Johanna Clifford. On one occasion, the applicant and Clifford went outside to have a cigarette. Young was already outside. As soon as Young saw the applicant, Clifford stated Young threw her cigarette down and stomped back inside. Clifford went to Norman to report on what she had observed and told Norman she needed to do something about it.

Later in his employment, the applicant was working on queue 3, under the supervision of Linton. On June 9, 2011, Linton and the applicant exchanged a series of text messages. Linton told the applicant that Norman had asked Linton about the applicant. Linton reported that she told Norman the applicant worked hard, did his work, helped Linton when asked, and that everyone made mistakes. The applicant responded by saying he had a bad feeling that Young was trying to get him fired. He said “I think I know why she hates me so much. And that’s definitely a personal thing”. Linton asked the applicant why Young felt that way. The applicant did not express his view that it was because of his sexual orientation.

On June 13, 2011, Young e-mailed Norman and advised her that she could no longer handle the situation. She stated she had informed the applicant to remove her number from his phone because he had involved her in text messages with other co-workers. The applicant met with Fiorucci and Norman on June 14, 2011. The applicant testified that he was told that he was not working out and that Young had problems with his attitude. Fiorucci testified the applicant was told he was making a lot of mistakes and was being moved to a different queue.

Over the course of the following week, Linton worked with the applicant on queue 3 and there continued to be difficulties with his performance. On July 5, 2011, Norman and Young met with the applicant and advised him he was terminated because of the mistakes that he had made. The applicant expressed to both Norman and Young that his problems with Young had started after he had “come out” to her.

Issues

1. Was Young’s treatment of the applicant influenced by his sexual orientation? NO
2. Did ISB fail in their Duty to Investigate? NO (re: Code grounds)
3. Was the decision to terminate the applicant’s employment driven by Young’s discriminatory targeting of him? If so, was the termination discriminatory in itself? NO

Analysis

1. The applicant testified that he had a very good relationship with Young during his first couple of weeks in employment. On one of their breaks, the applicant disclosed to Young that he is gay. Young denies that the applicant disclosed his sexual orientation, but she testified that she believed the applicant was gay. The applicant asserts that after he told Young he was gay, her relationship with him changed and she began to target him. Although the applicant admits that he made mistakes during his employment, he believes the mistakes were minor considering the volume of searches that he conducted and that Young overreacted to his mistakes.

   In reviewing the evidence before me, it is clear that Young had a very negative opinion of the applicant. It is also apparent that she overreacted to the mistakes the applicant made and presumed bad intent on his part when there was none. For example, when the applicant asked to see the claim number of the file where he forgot to remove identifying information, Young perceived that he did this to be difficult and to argue. Young continually asserted the applicant’s attitude was worse than [B’s] and that she could not handle it. She was determined that it would not take two years to fire the applicant. She communicated her concerns to Norman repeatedly and went over Norman’s head to complain to Fiorucci. Young e-mailed Norman numerous times to seek her confirmation that the applicant was going to be let go. She went so far as not to collect Lottery money from him because she thought his employment was time-limited. (para 47)

   The Tribunal found the communication from the applicant to be polite and respectful. In light of the evidence of Boros and Linton, the applicant’s other supervisors, Young’s description of the applicant as someone with “attitude” is highly questionable. This raises the question of whether Young’s construct of the applicant as someone with “attitude” was tied to his sexual orientation. The Tribunal did not find sufficient evidence of sexual orientation being the factor negatively impacting the relationship between Young and the applicant due to the following reasons:

   The applicant did not work for Young during the first few weeks of his employment and he did not receive criticisms from Young during this period. Although the applicant believes her treatment changed after the alleged disclosure of his sexual orientation, the criticisms began after the applicant started working directly with Young.

   Both Young and the applicant testified that they had a good relationship during the first few weeks of the applicant’s employment. Young testified that she thought the applicant was gay. If Young’s view of the applicant was negatively influenced by his sexual orientation, this likely would have impacted their relationship at the beginning of the applicant’s employment. (para. 50, 51)

   The Tribunal found more probable that Young felt the applicant had an “attitude” because of his age rather than his sexual orientation.
   
   While Young’s treatment of the applicant was not discriminatory, it was clearly unfair. Young overreacted to the applicant’s mistakes, personalized his performance, drew a comparison to B and took a dislike to him on this basis, and became steadfast in her quest to get him fired. Other employees noticed the unfairness of her treatment. There is no evidence that ISB addressed the inappropriateness of Young’s behaviour towards the applicant even though it was well aware of her history. The failure of ISB to address Young’s behaviour led the applicant to conclude, not unreasonably, that it had something to do with his sexual orientation. He was unable to distinguish between unfair treatment per se and unfair treatment because of his sexual orientation.
    
2. The applicant testified that he met with Norman on May 5, 2011, to complain about Young’s treatment. He said that Young asked what was going on, and he told Norman about “coming out” to Young and his belief that this was why she was treating him badly. Norman denies that the applicant told her about “coming out” to Young and his explanation that this was the reason for her treatment. She testified that the applicant expressed concerns about Young, that she did not appear to like him, and that she appeared angry. Norman testified that she told the applicant that it was nothing personal – that it was just “Young being Young”. There is nothing in the narrative of the Application that the applicant expressed his view that Young’s treatment was because of his sexual orientation.
   
   The applicant testified further that he had a meeting with Fiorucci sometime after June 9, 2011. The applicant spoke to Fiorucci about the problems that he was having with Young. He did not tell him that he believed Young was treating him in this way because of his sexual orientation.
   
   At the termination meeting, when the applicant stated problems with Young were connected to his “coming out”, Norman immediately went to Fiorucci to report what the applicant had said.
    

   All of this evidence leads me to conclude that the applicant did not tell Norman that he believed Young’s treatment was connected to his sexual orientation at the May 5, 2011 meeting. What he did disclose was his belief that Young was treating him badly. In light of this finding, it is not necessary for me to address the applicant’s argument that the respondent failed to investigate his complaint. This complaint is dismissed. (para 70)

   The decision to terminate the applicant’s employment was not made based on Young’s opinion of the applicant. ISB took steps to ensure that this was not the case by removing the applicant from Young’s supervision and moving him to queue 3 under the supervision of Linton. Linton and the applicant had a good and supportive relationship. The applicant worked with Linton for three weeks. During this time, the applicant continued to make similar mistakes to the mistakes that he made previously.
   
   The applicant was terminated three weeks after his probationary period ended only because Norman and Fiorucci wanted to ensure that he was terminated for performance-based reasons. The Tribunal stated: “Young’s treatment of the applicant, although unfair, was not discriminatory. Non-discriminatory or unfair treatment on the part of Young cannot taint a decision to terminate with discrimination.” (para 74)

Remedy

The Application is dismissed.

Summary

Qiu v. 2076831 Ontario Ltd., 2017 HRTO 1432

The Applicant, Nan Qiu, started providing bookkeeping and accounting services to the Respondent on July 4, 2011. After a short period working as an employee, the personal respondent suggested that she set up her own business so that the Company would not need to remit taxes and statutory deductions. The applicant agreed.

Initially, the applicant shared an office with other male staff, but later on, she moved to her own office, which did not have a door. The applicant indicated that she liked her job and had a good relationship with the personal respondent. However, as he became more familiar with the applicant, he began to make sexualized jokes and shared sexualized pictures on his computer. The applicant asked the respondent not to share any sexualized pictures or jokes with her.

The applicant testified that the personal respondent often talked about female customers in a hostile and sexualized way. “She recounted the personal respondent saying “that bitch complained about my car”, “she needs a man to have sex” and “she dresses like a prostitute.” He also commented about her clothing, that she did not dress very nice, that her clothing did not fit her and that her clothes looked like “grandma clothes.” (para 8)

Additionally, the personal respondent also made fun of the applicant’s accent and made derogatory remarks about Chinese people in a manner that reflected and perpetuated negative stereotypes.

The applicant testified that at some point in 2011, the personal respondent began to engage in physical conduct by snapping her bra strap on several occasions and slapping her on her backside on occasion. The personal respondent told her that his behaviour was a joke.

During the second half of 2014, she was again subjected to sexual jokes and comments and physical contact by the personal respondent. When she told him nicely that she did not like the comments and behaviour, he would remind her that “I’m the boss.”

In the summer of 2015, she firmly advised the personal respondent to stop the behaviour or she would not come to work, and his response was to ask if the applicant was threatening him. Finally, one day after the personal respondent snapped her bra strap, she exploded and went to the personal respondent’s office, closed the door, and angrily told him to stop his behaviour. The applicant had to take a few days off after the incident to deal with the stress.

After that point, their relationship changed. The personal respondent became more critical of the applicant’s work and would swear at her when finding errors. The applicant was fired on the spot in December 2015 by the personal respondent after making remarks about another employee’s bonus, comment that the personal respondent considered a breach of confidentiality. The applicant thought the personal respondent simply used her comments as a reason to fire her given her earlier upset with his conduct. After being dismissed, the applicant was very emotional and suffered from sleep disorders and headaches.

Issues

1. Was there a contravention of the Code and, along with other sections, a breach of section 5(1), which states that “every person has a right to equal treatment with respect to employment because of sex”? YES
    
2. Did the personal respondent engage in reprisal? YES

Analysis

1. On the issue of inappropriate touching, the Tribunal found the personal respondent a non-credible witness given that he was reluctant to address the issues directly and simply denied that they happened.

   On cross-examination, the personal respondent indicated that: “I never made sexualized jokes”; “I never slapped her butt”; “I never snapped her bra”; “I never mimicked her accent”; and “I never had a conversation with her about my behaviour in the summer of 2015 behind closed doors”. He stated: “All of her allegations are entirely false.” (para 40)

   Accordingly, the Tribunal found that the personal respondent on several occasions snapped the applicant’s bra strap, smacked her backside and squeezed her shoulders.
   
   On the issue of sexualized comments and jokes, the Tribunal states: “The fact that the personal respondent would casually send an email to the respondent with the subject line ‘hardcore gay porn’, even if the attachment was benign, is, in my view, emblematic of a sexualized environment that the applicant had to tolerate.” (para 74). The Tribunal also found that given the evidence and on a balance of probabilities, the personal respondent would talk about female clients in derogatory terms and make fun of the applicant’s way of dressing. However, the Tribunal did not find enough evidence to assert that the personal respondent made stereotypical comments about Chinese people or made fun of the applicant’s accent.
   
   The applicant alleges that the respondents violated her rights under the Code by being subjected to a poisoned work environment. Her right to be free from harassment in the workplace because of sex was infringed by the respondents. The Tribunal asserts:

   I am of the view that the personal respondent’s ongoing inappropriate touching of the applicant, his sexualized jokes and pictures as well as derogatory comments about female clients and the applicant’s attire to be indications that the personal respondent considered the applicant inferior and her personal behaviour objectionable. It also appears the applicant’s attempts to protest his conduct by telling the personal respondent that his conduct was inappropriate and unwelcome were unsuccessful. I accept the applicant’s testimony that the personal respondent simply told her that he was the “boss” implying that he could do as he liked. As a consequence, a very real condition of the applicant’s employment was that she had to face the personal respondent’s abuse and that on any given day the applicant could expect to be subjected to the personal respondent’s misconduct. I am satisfied that this recurring treatment created a poisonous work environment for the applicant, an environment where she knew to expect that in carrying out her job duties she must endure discriminatory conduct and comments. (para 85)
    

2. The applicant stated that she experienced reprisal after she confronted the personal respondent in the summer of 2015 when she assertively told him to stop his behaviour. She testified that her relationship with the personal respondent changed, and he seemed angry with her.

   The test for reprisal includes a requirement that here be some evidence of the respondent’s intention to reprise or evidence of a link between the applicant’s invocation of rights and the respondent’s subsequent conduct that is considered retaliatory. The Ontario Human Rights Commission Policy on Preventing Sexual and Gender-Based Harassment sets out that reprisal or “payback” may occur when someone becomes hostile to another and subjects them to excessive scrutiny. (para 89)

   The Tribunal found that the personal respondent reprised against the applicant by the harsh manner in which the personal respondent treated the applicant following the summer of 2015 confrontation. The applicant’s ultimate dismissal in December 2015 was precipitated by the applicant’s objection to the personal respondent’s misconduct.

   With regard to the organizational respondent, it is deemed to be liable for the violations of s. 5(1) of the Code by the personal respondent pursuant to s. 46.3 of the Code…where a poisoned work environment is found, a corporate or organizational respondent will be deemed to be liable under the Code without regard to: (1) whether or not the comments or conduct found to create the poisoned work environment were reported to management or whether or not management took reasonable steps to address such comments or conduct; or (2) whether the person(s) responsible for the comments or conduct found to create the poisoned work environment were part of the employer’s “directing mind” or just mere co-workers. (see, George at para. 61). (para 93)

Remedy

Given that the discrimination that the applicant experienced was serious, aggravated and repeated, and that there were multiple instances of physical touching, reprisal and a sudden loss of employment, The Tribunal awarded $30.000 for injury to dignity, feelings and self-respect.