Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE
Ingrid Andersen Complainant
v.
Mario Bianchet, Daniel Bianchet and Taro Painting and Decorating Division Respondents
Date of Complaint: September, 1984 Date of Decision: September 25, 1986 Place: Kingston, Ontario Before: Daniel A. Soberman Appearances by: Stephen Mason, Counsel for Ingrid Andersen and the Ontario Human Rights Commission Donald Schlicter, Counsel for Mario Bianchet et al.
SEX DISCRIMINATION — position as painter denied — DISCRIMINATION — motivation and relevance to presence of discrimination — LIABILITY — employer/corporate liability for sub-contractor
Summary: The Board of Inquiry finds that Mario Bianchet and Taro Painting discriminated against Ingrid Andersen because of her sex when they refused Ms. Andersen a job as a painter.
The Board of Inquiry rejects the respondents' argument that Mario Bianchet did not breach the Code because he was concerned about placing a woman at a work site such as the one in question where there were many other subcontractors and Bianchet could not control the conduct of all the people on the job site. The Board finds that the employer would not be liable for the conduct of workers he did not employ and that were there discrimination against Andersen at the work site by other workers, the Code would apply to their conduct and Andersen could have sought remedy in that way. Consequently, the Board finds that the employer's lack of control over all workers at the site did not justify refusing the complainant employment because of her sex.
The Board orders the respondents to pay Ingrid Andersen $862 in compensation for wages she lost due to the discrimination.
The Facts
1There is no dispute about the facts in this complaint: the complainant, a young woman, applied for a job as a painter posted at a Canada Employment Centre; the respondent refused to interview or hire her because she is a woman.
2The relevant details can be shortly stated. In late August 1984 the respondent, Taro Painting and Decorating Division, requested the Employment Centre to post an opening for a painter apprentice, a person with some experience whom it was willing to train on the job. The complainant, Ingrid Andersen, had had experience painting a motel. On September 5, 1984, she saw the job description and asked an employment counsellor at the Centre about it. The Counsellor telephoned the respondent's office because she had some concern that the job was not a "traditional" one for a woman. The respondent's secretary said that she would check with the respondent, Mario Bianchet.
3Subsequently the complainant telephoned the respondent's office and spoke with the secretary. The secretary reported that Mr. Bianchet would not interview Ms. Andersen, because he did not believe a woman should be hired for the job. The job would have lasted nine weeks (the time that two male applicants who were hired worked) with little if any likelihood that it would have continued beyond that period. A week later Ms. Andersen found a trainee job as a dental technician.
4Ms. Andersen's qualifications for the job in question were never examined. The sole ground for refusing her an interview was that she is a woman. Ms. Andersen is claiming only compensation for the lost employment opportunity and is not asking for general damages. The main issue before this Board is whether the refusal to interview the complainant amounts to a breach of section 4(1) and section 8 of the Ontario Human Rights Code, thereby entitling the complainant to compensation.
Respondent's Argument
5The respondent, Mr. Bianchet, does not deny that he refused to interview Ms. Andersen. He states that he was being open and honest about it. His counsel suggested that he could easily have engaged in the subterfuge of granting an interview to Ms. Andersen and then giving the job to a man with a claim that the man was better qualified. By taking that path he could have avoided the present complaint. Instead, Mr. Bianchet stated his position clearly and refused even to interview Ms. Andersen because it would have been a waste of time. He believed that he was acting correctly and explained why. Mr. Bianchet is to be commended for his openness and honesty in this matter. His position should be put as clearly and persuasively as possible.
6Mr. Bianchet claimed that he would hire women as painters on a construction contract if his firm was in control of the premises. His counsel conceded that hostility from the respondent's own employees would not be sufficient excuse for refusing to hire women; refusal on that basis would be a violation of the Ontario Human Rights Code. That position is in accord with the decisions in Imberto and Kickham to which we shall return below.
7However, the respondent argues that the situation in the case before this Board was different in a crucial respect. The work site was a new, thirty-unit senior citizen's complex, where the respondent firm was just one of a large number of subcontractors — plumbers, electricians, carpenters, carpet layers and others — all working on the building. According to the respondent, there were between five and ten subcontractors, employing between twenty-five and seventy-five workers, on the site at any one time. Only three or four workers would be those of the respondent and he had no control over any of the others. All the other workers were men. There was a single portable washroom.
8Counsel for the respondent stated that the respondent had legitimate worries related to his situation. The respondent was concerned about the rough language used by the workers, their hostility toward a lone woman worker and the prospects for harassment by persons over whom he had neither control nor influence, but for whose conduct he might be held responsible. If the workers for the other subcontractors refused to accept a woman working on the job, there could be economic costs to the respondent. Accordingly, in this situation where the work environment is beyond the control of the respondent, it was submitted that he ought to be excused from the requirements of section 4(1) of the Code, or in the alternative that, pursuant to section 23(b) of the Code, sex was a "bona fide qualification because of the nature of the employment."
9The difficulty with excusing discrimination in employment of one party (who claims that he would not voluntarily engage in such practice), on the basis of the discriminatory attitude and conduct of others, is that it would, in the words of Professor McCamus [in Imberto v. Vic and Tony Coiffure et al. (1981), 1981 CanLII 4320 (ON HRT), 2 C.H.R.R. D/392 at D/396]:
perpetuate the very practices and policies which the Code is designed to bring to an end. Thus, for example, if an employer were to be permitted to refuse employment to members of a particular racial group because his existing employees disliked members of that group, the Code's objective of eliminating discriminatory barriers to employment of the members of that racial group would be frustrated. Nor is it material, in my view, that a particular group of employees appear to be so committed to their biases that they will quit en masse and create a very difficult situation for their employers.
Professor McCamus went on to deal with the claim of the respondent that in the circumstances sex might be a bona fide occupational qualilfication. He observed:
It is argued, in effect, that where the existing work force holds discriminatory attitudes based on age, sex or marital status, requirements based on such discriminatory attitudes constitute a "bona fide occupational qualification and requirement." I am satisfied, however, that this is not a construction which this language can reasonably be asked to bear. Again, to interpret the Code in such fashion as to perpetuate discriminatory attitudes of this kind would very substantially undermine the purposes which the Code is patently designed to serve. Moreover, the more obvious interpretation of this phrase, i.e. that it relates to types of employment where characteristics relating to age, sex or marital status bear some relationship to the individual's ability to perform the job in question, is one which is quite consistent with the overall scheme of the legislation.
Accordingly, he concludes that neither the fact of economic hardship, nor the category of bona fide occupational qualification will excuse an employer who discriminates against an employee or prospective employee for reasons of the actual or feared conduct of other employees toward that person. In that case, the proprietor of a hairdressing salon had refused employment to a male hairdresser, one of the reasons being that some of the employees, all of whom were female, did not want a male co-worker. The Board found the excuse not to be valid. The decision is cited with approval in Kickham v. City of Charlottetown (1986), 1986 CanLII 6527 (PE HRC), 7 C.H.R.R. D/3339 at 3343 (Clark). I agree with the reasons given in both cases and believe that they would apply in the present case, if the employees in question were those of the respondent. Indeed, as noted earlier, the respondent had conceded as much.
10The question remains whether in the case before us the fact that the other workers were not the employees of the respondent and were not under his control was sufficient to distinguish it from Imberto and Kickham, and to excuse the respondent from liability under the Code.
The Law
11A first look would seem to confirm that the respondent in this case did have a more difficult problem than the respondents in the earlier cases who dealt with their own employees. The respondent here had no control over the employees of other subcontractors at the worksite. On the other hand, since he had no control over them, the respondent would not be responsible for their conduct toward one of his own employees unless he were found to have encouraged it. In my view, he is not excused from giving equal treatment to a prospective employee because he feared that other persons over whom he had no control might react negatively to that prospective employee.
12Although the respondent appears to have been motivated in part by concern for the well-being of the complainant and his inability to protect her from the misconduct of others, this decent concern is offset by the stereotyping of a woman employee is being unable to fit in and to look after herself. In addition, the conduct of employees of other subcontractors could in itself constitute a breach of the Code: section 4(1) states that, "Every person has a right to equal treatment with respect to employment without discrimination because of . . . sex . . ." Unlike section 4(2) and section 6(2), which deal specifically with freedom from harassment from the "employer or agent of the employer or by another employee', section 4(1) is unqualified. I construe the words of section 4(1) to create a right to "equal treatment . . . without discrimination" from everyone in Ontario who might interfere with that right. This interpretation is supported by the prohibition of section 8 that, "No person shall infringe or do, directly or indirectly, anything that infringes a right under this part." [Emphasis added]
13If I am correct, then employees of other subcontractors who interfered with the rights of an employee of the respondent, would themselves be subject to the sanctions of the Ontario Human Rights Code — as might the other employers themselves. A valid complaint could be made and appropriate measures taken to protect a complainant's rights. In other words, the respondent's difficulties at the worksite were not as insuperable as they might have first have seemed:
(a) in the absence of any encouragement on his part, he would not be liable for the conduct of the employees of other subcontractors;
(b) the Ontario Human Rights Code prohibits conduct by other workers that would infringe the rights of an employee of the respondent;
(c) that employee would have enforceable rights against other workers and employers who acquiesced in the infringement.
Indeed, I would hope that a conscientious employer of a person whose rights were infringed by others would wish to assist that person in enforcing those rights.
14All this is not to deny that the respondent perceived a real problem and that he honestly acted as he thought best. Such is the nature of systemic discrimination that those who perpetuate it are unaware of the larger consequences and almost invariably believe they are acting properly. There may sometimes be costs to be absorbed by such persons when they are required to conform to standards of equality in human rights legislation. However, the province of Ontario, through its Human Rights Code, has placed a high value on these rights for the greater public good. The purposes of the Code will be undermined if infringement of the Code is excused for the transitory benefit of the perpetrator. Accordingly, I find that the reasoning in the Imberto and Kickham decisions, supra, — that fear of discriminatory conduct by an employer's own employees does not excuse discrimination by the employer — applies with equal force to the case where the fear is with regard to the misconduct of persons who are employed by others on the same worksite. To find otherwise would be to perpetuate the very discrimination the Code is intended abolish.
15Therefore, the discriminatory conduct of the respondent, Mario Bianchet, in refusing to interview the complainant, Ingrid Andersen, for a job as a painter apprentice, is an infringement of her right to equal treatment with respect to employment under section 4(1) of the Ontario Human Rights Code. The respondent has acted contrary to section 8 of the Code without lawful excuse, and the complainant is entitled to a remedy under section 40(1)(b).
Remedy
16If the complainant had been interviewed and subsequently offered a job with the respondent firm, she would probably have started to work on the following Monday, September 10, 1984. The evidence before the Board suggests that she would have earned $3.85 per hour. She remained unemployed during the five-day work week beginning that day, and therefore missed the opportunity to work forty hours and earn a total of $154.
17On September 17, 1984, Ms. Andersen began work as a trainee dental technician at $100 per week, $54 per week less than she would have earned at the starting wage of the respondent firm. In the next two weeks before the beginning of October she would have earned an additional $108 with the respondent. Evidence shows that the hourly rate of the two apprentice painters hired by the respondent was raised to five dollars per hour on October 1st, and thus they worked at the rate of $200 per week for a further six weeks. Thus Ms. Anderson would have earned $100 more per week for the last six weeks, in all an additional $600. On this basis Ms. Andersen's total lost earnings over the nine-week period that the apprentice painters worked for the respondent was $862.
18Counsel for the respondent disputed this calculation on the basis that the complainant had obtained a much more beneficial job as a trainee dental technician where she continued to work for two years, whereas the job with the respondent was only of a nine-week duration. He argued that she should not be entitled to any compensation beyond the first week when she was unemployed. I do not find this argument persuasive. It is difficult if not impossible to place an economic value on the potential length of time a trainee may continue employment. For instance, if this case had been heard and decided very shortly after the breach of Ms. Andersen's rights, we would not have known how long her trainee job was likely to continue.
19In any event, even if she had first worked for the respondent, we cannot know whether some nine weeks later she might still have obtained the same dental technician trainee job or even a higher paying job. The claim of the respondent is too speculative to form a basis for reducing the amount of compensation to which the complainant ought otherwise to be entitled. We have in effect already reduced that compensation by the amount of money the complainant was able to earn as a result of the respondent's refusal to hire her.
20The respondent, Daniel Bianchet, and the respondent firm, Taro Painting and Decorating Division, have not appeared before this Board or denied that Mario Bianchet was acting throughout on their behalf as well as his own. It appears conclusively then, that Mario Bianchet was acting within his authority to bind the other two parties both with respect to the infringement of Ingrid Andersen's rights and in representing them before this Board. Accordingly, the decision is binding upon Daniel Bianchet and Taro Painting and Decorating Division as well as Mario Bianchet.
Order
21This Board of Inquiry, having found the respondents, Mario Bianchet, Daniel Bianchet and Taro Painting and Decorating Division to be in breach of section 4(1) and section 8 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, as amended, in respect of complainant, Ingrid Andersen, for the reasons given, this Board of Inquiry orders the following:
The respondent shall pay forthwith to the complainant, as statutory compensation for lost wages, the sum of eight hundred and sixty-two ($862) dollars.