In a recent decision, a human rights tribunal (the “Tribunal”) determined that an employee who was dismissed for reacting to racist jokes made in her presence had been discriminated against at her job.

What Happened?

In this case, the employee in question worked as a sales consultant in a boutique.

During a shift, while she was busy serving several customers, the employee overheard a client telling a racist joke about Black people. That same evening, during a dinner with colleagues, the store manager, the employee’s supervisor, reiterated these same unacceptable remarks to the other members of the team. The employee expressed her discomfort and her disagreement with such remarks. At the hearing, the employee testified that she was appalled and withdrew for the rest of the evening.

On the employee’s next shift, the manager noticed that the employee was not exhibiting the positive and kind attitude that is expected of employees. The manager apologized to the employee, stating that she had no intention of hurting the employee by repeating the joke. However, she accused the employee of taking the situation too personally. Disturbed by this last criticism from her supervisor, the employee posted a comment on her private Facebook page to describe the situation, without, however, revealing details or the employer’s identity.

After learning of this posting, the manager consulted the employer’s human resources director and they made the decision to dismiss the employee. The next day, the employee was questioned by her supervisor about the Facebook post and her behaviour over the previous days. During this meeting, the manager criticized the employee's attitude, which she considered to be negative and unacceptable. At the end of this meeting, she gave the employee a letter of dismissal.

Following her dismissal, the employee filed a complaint with the Commission des droits de la personne et de la jeunesse (hereinafter the “Commission”) for discriminatory dismissal based on race and colour.

What Did The Tribunal Decide?

In this case, the Tribunal found that the evidence clearly established that the employer fired the employee because of her reaction to the racist jokes told in her presence.

Moreover, the case law establishes that the dismissal of an employee because of their reaction to the discrimination they experience constitutes discrimination prohibited by the Charter of Human Rights and Freedoms (hereinafter the “Charter”). As such, the Tribunal mentioned in its reasoning that “an employer cannot require an employee upset by racist behaviour at work or during work to act as if they were not suffering from it.” Although they may require the employee to perform their work in a professional manner, they must also accommodate them to allow them a reasonable time to recover from the event.

Thus, the Tribunal determined that by dismissing the employee, the employer infringed her right to the recognition and exercise of her rights related to her employment and her working conditions, without distinction or exclusion based on race or colour. The Tribunal also noted that, since the end of her employment, the employee “has been adapting her choices and behaviour to avoid once again suffering the consequences of a reaction to racist behaviour towards her.”

The Tribunal ordered the manager and the employer, jointly and severally, to pay $10,000 in moral damages to compensate for the harm suffered by the employee. 

However, the Tribunal refused to award punitive damages, since it did not detect any malice on the part of the manager or the employer. Furthermore, the Tribunal ordered the employer to adopt or update a policy aimed against discrimination discrimination in the workplace.

Takeaway

This decision serves to remind employers that they have an obligation to protect their employees against the effects of discrimination in the workplace. In the event that an employee is a victim of discrimination, an employer should assess the situation on a case-by-case basis before taking the appropriate measures.