May 1 2017
A recent decision of the Ontario Human Rights Tribunal deals with the following interest question:
What if an employer’s decision to terminate an employee is tainted by racial discrimination, but also there were legitimate performance related reason to terminate the employee? In those circumstances, is the termination unlawful?
The decision from April 2017 is called Maracle v. Free Flow Petroleum It deals with material covered in the human rights chapters of the Law of Work, especially Chapter 26 [Putting Human Rights to Work].
Maracle is an Indigenous woman who was hired in July 2015 to work at a Subway franchise. She was terminated on November 12, 2015 after working 490 hours. The employer alleged she was fired for performance problems, including a regular failure to comply with hygiene rules, including wearing of an apron and hairnet, and also because she regularly argued with her supervisor and took too many breaks.
Maracle argued that her supervisor, Lang, had it in for her and made several racist comments relating to Maracle’s Indigenous status. These comments included complaints about how Maracle and Indigenous people generally “get all the breaks” by not having to pay income tax. Lang repeated these complaints to other employees, stating that is was “ridiculous” that Maracle got higher take home pay because she did not have income tax deductions.
The Tribunal summarized the legal test. Ms Maracle first needed to establish a “prima facie” case of discrimination, which means that it is more likely than not that discrimination occurred. At that point, the “evidentiary burden” shifts to the employer to establish that there is a credible, non-discriminatory explanation for its behaviour. There need not be an intention to discriminate in order for unlawful discrimination to have occurred.
The Tribunal rejected Maracle’s claim that Lang had discriminated against her by constantly telling her to wear her apron and a hair net, since these are normal orders a supervisor would make. Since Maracle was a relatively new employee, the Tribunal found nothing improper in the employer’s decision to terminate her for performance related problems.
However, notwithstanding that there were valid performance related problems that justified termination, the Tribunal also ruled that there were discriminatory comments made that were troubling:
I find these specific comments by Ms. Lang discriminatory because the implication is that Indigenous people somehow get “breaks” by virtue of their status. I find the comments derogatory and that they are based on stereotypical and discriminatory views about First Nations people. Although the respondent appears to suggest that in any event, the statement about tax “breaks” is factually correct, the comments play into negative impressions of Indigenous people as receiving tax breaks or other rights and privileges.
Having found that Lang’s comments were discriminatory, the Tribunal then considered how this finding should effect its earlier decision that that there were valid performance related problems justifying termination.
The employer has a right to terminate an employee who is failing to live up to the demands of the job. However, Ms. Lang’s comments are what trouble me. It is well established that a Code ground need not be the only factor, or even the dominant factor, in adverse treatment, for a finding of discrimination under the Code. I have already found that Ms. Lang made two discriminatory comments related to the applicant’s heritage as an Indigenous woman. Ms. Lang is also the same person who made the decision to terminate the applicant. In light of this finding, am I persuaded that the applicant’s race was in no way a factor in any way in this termination decision? I am not. However, I also find that the respondent would have terminated the applicant for a variety of performance-related issues in any event, and that it would have been justified in its decision to do so at that time.
In the end, the Tribunal ruled that it was more probably than not “that the applicant’s race was a factor in Ms. Lang’s decision to terminate her employment”. In legal parlance, we say that the decision to terminate was “tainted” by discrimination.
What then is the remedy in a case where the employer terminated an employee for legitimate performance problems, but also where “race was a factor” in the decision?
Since the termination was justified based on non-discriminatory reasons, the Tribunal elects not to overturn that decision. The employee is not reinstated. However, since unlawful discrimination occurred, there has to be some remedy. The Tribunal orders the employer to pay Maracle $5000 for injury to dignity, feelings, and self-respect.
Issue for Discussion
In the Collective Bargaining Regime, a decision to terminate an employee that is tainted by anti-union motivation (“anti-union animus”) usually renders the termination void, even if there were other valid business justifications for the termination. See Chapter 40 Unfair Labour Practices in the Complete Law of Work text).
Do you think that human rights law should adopt a similar approach, such that a termination decision that is in any way tainted by discrimination would be rendered unlawful an result in a presumptive reinstatement order?
What are arguments for and against such an approach?