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No discrimination = Human rights damages? It can if there was no investigation.

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Deen Morgan believed that he was targeted at work because of his skin colour.  His employer did not agree but it dismissed Mr. Morgan’s concerns and instead found a reason to terminate his employment.  When he took his complaint to the Human Rights Tribunal of Ontario (the “HRTO”), they ruled in a decision released last month that Mr. Morgan was wrong and that the treatment that he received at work was not racially motivated.  However, because he honestly believed this to be true and complained about it, his employer was still found liable for damages for failing to appropriately respond.

Mr. Morgan worked for the furniture company, Herman Miller Canada Inc., as an Installation Scheduler.  Herman Miller was struggling financially and all employees, including Mr. Morgan, were expected to chip in with extra duties.  Mr. Morgan believed that he was singled out because he was black.  Similarly, when he was disciplined for having disclosed confidential information to a supplier, he believed again that this was because of his skin colour.  When the matter went to hearing, other than his own suspicion, Mr. Morgan was unable to introduce any evidence that the steps that his employer took were based on his skin colour.  As a result, the HRTO made a finding of no discrimination in the case.

However, Mr. Morgan honestly believed he had been discriminated against and he shared his concerns with members of management.  He did not file a “report” of discrimination nor did he claim “harassment pursuant to the Human Rights Code”.  He did, though, tell company management that he believed that he was being treated differently because he was black and the HRTO held that this was sufficient to trigger an obligation on the part of the company to investigate.  Herman Miller failed to take any action in response, and instead they moved down a path to end his employment.

The HRTO found that Mr. Morgan’s termination constituted a “reprisal” for his having raised his concerns of discrimination.  They similarly found that the company failed to fulfil its obligation to investigate his concerns when raised.  Even though it was specifically held that Mr. Morgan had not been the victim of discrimination, he was awarded lost wages for the improper termination of his employment.  He was also awarded $15,000 as damages for injury to his “dignity, feelings and self-respect.”

Mr. Morgan never made a formal complaint.  Instead, he had informal discussions with members of management about his concerns regarding the treatment he was receiving.  Although these concerns were passed along to senior management, they were not taken seriously and the result was a damages award in a case where no finding of discrimination was made.  If an organization can be liable for human rights damages even when they don’t discriminate, how do organizations protect themselves?

We have assisted our clients by helping to develop training programs that teach their management team and senior leadership to identify human rights concerns when they are raised, even informally, and even if the words “discrimination” and “harassment” are not used.  The programs also ensure that the organization knows how to respond to the concerns in a meaningful way, even if the organization is certain that there is no merit to the concerns, and how to keep records of their response.  Finally, we make sure that the client knows that if they are looking to terminate an employee who has raised a human rights concern, they need to exercise great caution.  Before proceeding with a termination, we recommend that our clients review with us the circumstances leading to termination, to ensure that the human rights concerns play no part in the decision-making process.  Sophisticated organizations whose staff has human rights expertise may find these issues straightforward, but for others, the risk of facing human right liability can be mitigated through effective training and legal consultation.  Not surprisingly, as part of the decision in the Morgan case, the HRTO ordered Herman Miller to do exactly this type of training.

Chris Thomlinson