A Canadian Citizenship and Immigration fact sheet says that more than 192,000 temporary foreign workers entered Canada in 2011.  It is also reported that 213,516 temporary foreign workers entered Canada in 2012. Many new Canadian workers arrive with English as their second (or third) language.  A recent Ontario human rights decision is a reminder that cultural  diversity training about human rights in the workplace is essential and that employers must remember this when preparing and training employees to work in Canada.

What happened?

Pascal, a black man of African descent, and his family went grocery shopping. When it came time to pay for their groceries, Pascal went to cashier number four where Feng Lin was on duty. Pascal put his groceries on a conveyor belt and there was disagreement between Feng Lin and Pascal over who would pack Pascal’s groceries. This led to Feng Lin saying something to another cashier in Chinese that Pascal did not understand. However, Feng Lin and the other cashier found Feng Lin’s comments funny and laughed. Pascal did notice that his wife, Yu Xia Cao, frowned at Feng Lin’s comment to the other cashier. Yu Xia Cao spoke Chinese and Pascal insisted that she tell him what Feng Lin said. Pascal’s wife broke down in tears and told Pascal that Feng Lin said “Look at this monkey.  If I married him I would suffer the rest of my life”.

Understandably, Pascal became angry on hearing this hurtful comment.  He went to customer service to report the incident and asked to speak to a supervisor or manager.  He was told the manager was not present and was given a telephone number to call.  Pascal gave up and left the store with his family.  Pascal called the phone number three times, leaving messages each time, before he was finally connected to the manager.  He eventually met the manager who offered Pascal a discount on his next grocery purchase and offered to fire Feng Lin. Pascal said this was inadequate – he wanted the matter investigated so that the behaviour was not repeated on other customers. He asked the manager to take responsibility and educate and train staff to avoid this kind of incident in the future. The manager did not agree.

Pascal complained to the Ontario Human Rights Commission claiming he was discriminated against with respect to goods, services and facilities because of his race. His complaint was eventually heard by adjudicator Douglas Sanderson in February 2013 and a decision was released in July 2013.

What did the Human Rights Tribunal of Ontario do?

The tribunal found in favour of Pascal saying that the comment made by Feng Lin was a racial slur against Pascal, there was no evidence that the employer had a policy in place to deal with complaints for Human Rights Code violations, that employees received any Code training, or that the employer took any steps to investigate the alleged actions of its employee.  Here’s an excerpt from the decision:

…The organizational respondent made little effort, on the evidence before me, to address the applicant’s complaint and it was only because of the applicant’s persistence that the parties eventually met – two or three weeks later.  In my view, the evidence indicates that the organizational respondent did not take the complaint seriously or take proactive steps to address it.  The organizational respondent’s investigation consisted solely of question the individual respondent.  The organizational respondent made no attempt to ascertain the specifics of the applicant’s complaint, e.g., by interviewing the applicant and Ms. Cao or having them make written statements, and it did not identify potential witnesses, e.g., Ms. Wu, who might have shed light on the incident (until, that is, it was required to litigate this Application).  The organizational respondent did not find any violation of the Code, but there is no evidence that it made any effort to assure the applicant that it took human rights seriously.  … The Tribunal does not hold respondents to a standard of perfection, but the evidence before me indicates that the organizational respondent did not meet its obligation to investigate and act upon the applicant’s complaint.  Consequently, I find that organizational respondent is responsible, along with the individual respondent for the discrimination experienced by the applicant…

What is the takeaway?

The multicultural workplace is here to stay.  Employees cannot hide behind language when it comes to human rights.  Whether a racial slur is made in Mandarin, Hindi, Javanese, Bengali or any other language it is a racial slur.  Employers also cannot hide behind language issues to defend or justify employee behaviour. The case is a good reminder to:

  • Train and manage employees on human rights and cultural difference
  • Have a clear policy in place for dealing with human rights complaints
  • Take complaints seriously – investigate and take action on a complaint

Ignoring this reminder will not cut it and will end up costing you.  In Adorgloh and Seasons Foodmart and Feng Lin, the actual case we’ve drawn from above, Adjudicator Sanderson ordered:

  • $2,000 for injury to Pascal’s dignity, feelings and self-respect ($500 from Feng Lin and 1,500 from Seasons Foodmart)
  • “Human Rights 101” eLearning for Feng Lin via the Ontario Human Rights Commission’s website at www.ohrc.on.ca

This award was in addition to the potential damage a public press image may generate for an employer’s business as well as the cost, both financial and emotional, of defending a complaint itself.