While you’re here, you may wish to attend one of our upcoming workshops:
When I’m conducting training sessions on human rights and respect at work, I predictably talk about how people can be found liable for breaching the Human Rights Code even if they didn’t intend to offend. Someone will usually then ask whether that means that anyone can complain about behaviour that they find offensive, even if their reaction to the behaviour seems irrational. We then talk about how the behaviour does have to meet a reasonableness standard and that not just anything will be found to be a Code violation because someone took offense. A decision released by the British Columbia Human Rights Tribunal (“BCHRT”) last month is a very good example of this principle in practice.
Sergey Turbin started work on July 16, 2012, as an accountant working for Island Scallops Ltd., a marine hatchery business in British Columbia. On August 22, 2012, roughly five weeks after he started work, he was fired. Believing he was fired for reasons which related to his Russian heritage, he made a complaint to the BCHRT.
Mr. Turbin testified at the hearing about two specific comments that were made to him which he believed proved that he had been discriminated against on the basis of ancestry and place of origin. The first comment was made after Mr. Turbin complained about receiving a mobile telephone for work which turned out to be used. In response to Mr. Turbin’s complaint, the Human Resources Manager was found to have said that Mr. Turbin should be happy to have any phone, which Mr. Turbin took to be derogatory towards immigrants. Also shortly after starting work, Mr. Turbin refused to do a piece of work when asked by the same HR Manager, to which the HR Manager said that Mr. Turbin made a lot of money and that many Canadians would be happy to work at the company. The BCHRT found that, even though Mr. Turin’s perceptions were honestly stated, they were “not always those of a reasonably objective observer.”
While considering the above comments, the BCHRT also heard evidence about a large number of problems which arose during the course of Mr. Turin’s few short weeks of employment, ranging from multiple accounting errors, changing procedures without notifying his supervisor, inappropriate interactions with a high-school summer student, and interactions with colleagues and stakeholders that were “rude and short.”
Following the standard approach to analyzing allegations of human rights discrimination, the BCHRT began by considering whether Mr. Turbin had established a prima facie case of discrimination on a balance of probabilities. There was no question that Mr. Turbin was of Russian origin and, as such, a member of a protected group. There was also no question that his termination constituted an adverse impact in the protected area of employment. The remaining question was whether Mr. Turbin’s Russian origin was a factor in the termination of his employment.
The BCHRT acknowledged that discriminatory acts “can arise from a process of subconscious stereotyping as well as from conscious decisions,” and also noted that there will rarely be direct evidence of racial discrimination, as such discrimination is, more often than not, subtle and hard to identify. Mr. Turbin tried to establish a nexus between his ancestry and his termination by suggesting that his rudeness was a Russian personality trait and one of the reasons why he was fired. Although the BCHRT accepted that Mr. Turbin was fired, in part, for his rudeness, it was further held that “no reasonable inference can be drawn from the evidence that rudeness is a Russian personality trait.”
Ultimately, Mr. Turbin was found to have failed to make out a prima facie case of discrimination and his complaint to the BCHRT was dismissed. It perhaps comes as no surprise that it was found that rudeness is not a Russian personality trait – such a finding would potentially have rendered discriminatory any negative action taken by an employer in respect of a rude employee who happened to be of Russian decent.
The more useful take-away from this case would seem to be the reminder that not every comment made in the workplace that one finds to be offensive will be found to constitute a human rights violation. The BCHRT noted that the comments made by the HR Manager in this case were inappropriate, but the fact that they were made on a one-time basis and in the context of Mr. Turbin either complaining or declining work, resulted in a finding that they fell into the realm of “poor taste and insensitivity” rather than being part of “a pattern of harassment or adverse treatment.”
About the Author: Toronto Employment Lawyer Christine Thomlinson is a co-founder and co-managing partner of Rubin Thomlinson LLP. Appearing regularly on Best Lawyers and Leading Practioners lists in Canada, Christine is known for her high capability to think strategically, and her ability to find practical, often innovative, legal solutions to her clients’ challenging workplace issues.