Human Rights Tribunal of Ontario (the “Tribunal”), found an employer liable for discrimination against a female employee on the basis of sex by sponsoring an event that was only for male sales executives and male clients. The Tribunal also found that the employer retaliated against the employee by terminating her employment after she complained about the event.
The applicant, Sheryl McConaghie, worked as the only female sales professional for Systemgroup Consulting Inc. (“Systemgroup”) since 2009. Systemgroup sponsored a customer appreciation day that was for men only, in which some employees and clients attended a ski club event. The ski club brochure advertised it as “A day for Men without Women and Children” and added “Bring your friends, bring your acquaintances, just don’t bring your wife!” In addition to skiing, the event listed planned activities such as “massage” and “Hooters Girls”.
The Tribunal had to decide two issues:
1. Did the applicant's exclusion from Men’s Day constitute discrimination contrary to section 5(1) of the Human Rights Code, RSO 1990, c. H.19 (the “Code”)?
2. Were the events that occurred after she complained about Men’s Day up to and including the termination of her employment, a reprisal in contravention of s.8 of the Code?
Discrimination Based on Sex Creates Adverse Impact
Ms. McConaghie argued that the exclusion from the event was discriminatory based on sex and in contravention of the Code. Section 5(1) of the Code states:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
The applicant has easily established that she was given different treatment in her workplace due to her sex. However, in order to establish that this section has been contravened the applicant must also establish that the treatment in question had some form of adverse impact on her.
The Tribunal was satisfied that the applicant experienced a negative emotional impact as a result of this exclusion and that the event undercut her ability to compete with her male peers by preventing her from spending time with clients. The Tribunal found that by “excluding a female sales professional from an event specifically designed to deepen relationships between clients and the respondent in order to increase sales” on the basis of her sex was both discriminatory and a breach of the code.
Reprisal Following Employee Complaint
Ms. McConaghie brought her complaint to the attention of her immediate supervisor, and the company president. Neither of them agreed that a gender-exclusive event like Men’s Day was inappropriate. On the same day she complained about the event to her supervisor, Ms. McConaghie’s sales for the calendar year were printed for review. Following her complaint Ms. McConaghie’s supervisor stopped inviting her to certain events and stopped having weekly one-on-one meetings with her, even though they were standard practice, and continued to conduct them with every other sales executive. Two months later, on March 19, 2012, Ms. McConaghie’s employment was terminated.
Ms. McConaghie argued that this constituted reprisal and breach of section 8 of the Code, which states:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for doing so.
The Systemgroup employee handbook also prohibited “differential treatment of employees or co-workers based on gender...” and prohibited retaliation against any person who made a complaint.
Systemgroup argued that the termination was based on the applicant’s poor performance and was not done to retaliate against Ms. McConaghie for her complaints. The Tribunal reviewed her performance in great detail and while they acknowledged her performance declined after her divorce in 2010 she was still a valuable employee. The Tribunal stated that “her sales numbers were so high that it is more likely than not that her termination was a reprisal for her complaints about Men’s Day.” In addition, the timing of termination suggested it was related to her complaints. They ultimately determined that the termination of employment was an act of reprisal.
Bottom Line: The Business Case for Fostering an Inclusive Workplace
The Tribunal ultimately awarded the lost value of the event ($150), wages for the period of unemployment, and damages of $18,000 to compensate for injury to dignity, feelings and self-respect.
The Alberta Human Rights Act, RSA 2000, c A-25.5, has comparable sections prohibiting discrimination in employment based on sex in section 7. It also prohibits retaliation of any person who makes a complaint under the act in section 10.
While you may not consider someone to be an employee, it is important to understand that “employment” although not defined in the Alberta Human Rights Act, has been given a broad, liberal and purposive definition by Canadian courts in human rights legislation. In general, an employment relationship exists when an individual earns their livelihood from the relationship. According to the Alberta Human Rights Commission, “independent contractors, subcontractors, taxi drivers, army cadets and volunteers have all been found to be in employment relationships under human rights legislation and therefore protected against discrimination.”
In addition to the incentive of complying with the law, there is also a business case to be made. Employers should be aware of the kind of environment that is being created and whether it is helping or hurting the business. In this case, two male sales executives left Systemgroup and mentioned as a factor in their decision to leave, the changing environment that allowed for events like Men’s Day to occur. Providing an inclusive work environment can be good for business in terms of retention of employees and clients and providing a supportive environment that people want to work in.
The Tribunal’s decision should be a reminder to all employers to be mindful of what the Alberta Human Rights Commission considers to be discrimination and to ensure that their practices do not discriminate against certain employees or groups of employees. Providing certain groups of employees with marketing or networking opportunities, to the exclusion of other employees, may be deemed a discriminatory practice.