Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE, 1981
Janice Lee Complainant
v.
T.J. Applebee's Food Conglomeration and Ross Simpson Respondents
Place: Toronto, Ontario
Before: W. Gunther Plaut
Comm. Decision No.: 320
Appearances by:
M. M. Fleishman, Counsel for the Ontario Human Rights Commission and Janice Lee
John LaGamba, Owner of T.J. Applebee's Conglomeration, on his own behalf
Ross Simpson, on his own behalf
RACE, COLOUR AND PLACE OF ORIGIN — poisoned environment — promotion denied on the basis of race — DISCRIMINATION — adverse effect discrimination — mixed motivation
Summary: The Board of Inquiry finds that T.J. Applebee's Food Conglomeration discriminated against Janice Lee, who is of Chinese ancestry, by requiring her to work in a racially poisoned atmosphere.
Ms. Lee alleged in T.J. Applebee's Food Conglomeration the employees in the back doing food preparation were non-white while the employees in the front who were in contact with customers were white. She complained that she was refused promotion to the front because she is non-white. The Board finds that this allegation is not substantiated. The sole reason for refusing to promote Ms. Lee was that the respondent considered her an excellent baker and wished to keep her in that position.
However, the Board finds that the majority of the staff in the back were members of racial minorities, while the majority of the staff in the front were white and that there was a racially poisoned atmosphere in T.J.'s . The managers of the staff in the food preparation area made repeated racial slurs and reasonable steps to end this behaviour were not taken by Ross Simpson, the general manager. Ms. Lee left her job because of this atmosphere.
The Board finds that Ms. Lee was discriminated against because of her race. T.J.'s is ordered to pay Ms. Lee $707.04 in compensation for lost wages and interest. The company is also ordered to hold a staff seminar with the aim of creating a work environment free of discriminatory language and practice, and to report to the Ontario Human Rights Commission on what steps have been undertaken to engage members of racial minorities in the positions in the front of the operation. The Board of Inquiry retains jurisdiction and the Commission may, during a period of two years, apply to the Board of Inquiry for an order requiring that steps be taken to promote adequate redress.
About the Hearings
1The preliminary hearing on July 23, 1987 established that neither respondent would choose to be represented by counsel. Furthermore, Mr. Simpson, who is one of the respondents, had moved away, first to Atlanta (from where he participated in the conference) and lately to Detroit. He did not appear on the first day and Mr. LaGamba asked for a postponement. I did not accede to his request, because the preliminary hearing established that Mr. Simpson might or might not attend and because the complainant had traveled for the hearing from Vancouver where she now lives. Mr. Simpson did appear on the second day.
2However, I gave the respondents some latitude during the hearings in order to be sure that, in the absence of counsel, their position would be properly put forward. In any case, Mr. LaGamba proved to be an astute cross-examiner and examiner-in-chief, who explored all issues at great length and in considerable detail.
Outline of the Case
3Ms. Janice Lee, who is of Chinese ancestry, had been employed with T.J. Applebee's Food Conglomeration (hereafter referred to as TJ) from the beginning of that company's operation in Toronto. Apparently TJ had a new concept of having an enormous choice of foods and drinks (the figure of 250 items was quoted) and the staff of some 120 persons required a considerable start-up time, both "in the front" as well as "in the back of the house."
4These two different locations indicate different service functions; the former (front-of-the-house) applies to the hosting, waiting, bar and bussing staff. They are clearly person-oriented, in the sense that they are in direct contact with the customers. The latter (back-of-the-house) consists basically of kitchen personnel who are product-oriented. The "back" provides the food; the "front" takes the order for it and brings it to the patron.
5In the trade, the front appears more prestigious, and waiting on tables in particular. Because of gratuities, it draws a larger income than service in the back.
6Ms. Lee, originally from Vancouver, began her job in June 1983 in the back. She is a person of poise, well-groomed and well-spoken and presents an attractive appearance. She told the Board that she had management aspirations and, in order to learn the trade from ground up, started in the back-of-the-house. She learned the various stations in the kitchen and eventually became a baker. She applied to management to advance to the front with the hopes of becoming a waitress. However, she was never accepted, although on two occasions she was promised that the move would be effected in time. Toward the end of 1984, she testified she had become discouraged with TJ's. Other persons, she claimed, who were Caucasian, were advanced from the back to the front-of-the-house; non-whites were not. Furthermore, there were racial incidents which "poisoned the atmosphere" and increasingly made her work unpleasant. She quit TJ's in January 1985.
7Not long thereafter she laid a complaint with the Ontario Human Rights Commission, claiming that she had been discriminated against on the basis of her race, colour, ancestry and ethnic origin, contrary to sections 4(1) and 8 of the Human Rights Code, 1981, (S.O. 1981, c. 53; hereafter referred to as the "Code"). The complaint was laid against TJ and against Ross Simpson, then its general manager.
Undisputed Facts
8It was not disputed that Ms. Lee was a capable and, almost until the end of her employment with TJ, an efficient and even enthusiastic worker.
Her final job was baking, and she was very good at it, drawing (next to the kitchen manager) the highest pay in the back-of-the-house.
9The owner of TJ's, John LaGamba, though spending many hours in the restaurant, was unaware of the racial problems; he himself was always fair to everyone, regardless of background. He played soccer with his staff and did so on an equal basis; racial differences played no role.
10The waiting staff was overwhelmingly white. In the kitchen the majority of the day staff were non-white, in contrast to the night staff who were largely white.
After TJ's ambitious beginnings the large staff was cut down by two thirds, because business did not warrant so elaborate an establishment.
11Racial slurs and stereotypical language were common in the kitchen, though none of this was directed specifically at Ms. Lee. The language came primarily from the kitchen managers, both white. One of them, however, Michael Kidd, was well liked by everyone, despite his comments.
12The general manager, Ross Simpson, was a hard-driving boss and he too, on at least one occasion, exhibited racial prejudice. He offered apologies to the staff (though not everyone agreed that the apology went far enough).
13Toward the end of the year Ms. Lee was suspended for insubordination; at a store party she delivered a speech which contrasted the front-of-the-house and the back, claiming that the latter were unappreciated for doing most of the hard work while getting the short end of the stick in pay. The speech caused bad feelings against Ms. Lee among the front staff.
14When Ms. Lee proffered her resignation, the owner tried to persuade her to stay; when he asked her why she was leaving she did not tell him that racial feelings played a role in her decision, telling him instead that she wanted to return to the world of art, a field which she had studied and in which she claimed a continuing interest.
15She subsequently obtained a position as manager of The Picture Store, TJ giving her a very positive recommendation. In taking this position she took a drop in pay. In time she left Toronto, returned to Vancouver where her family lives, obtained a job with Earl's as a baker and, after a tour in that position, was engaged by a securities house where she is still employed.
Facts in Dispute
16Complainant calls the atmosphere at TJ's "poisoned" racially, with non-white employees having been verbally insulted and stereotyped, while white employees were treated preferentially. Respondents claim that this is a grave distortion of reality.
17Complainant and other witnesses see Mr. Simpson as the hub of racial problems in that he failed to control anti-black language of subordinates and was himself guilty of it. Mr. Simpson calls this a misconception; he did what he could and when he himself had once slipped into a slur he apologized to everyone personally. Also, when a black employee was suspected of having committed a theft and police investigated him, Mr. Simpson apologized even to the suspect's parents. Per contra, these apologies are discounted by the other side, and in the latter case the very singling out of the black suspect was seen as racial prejudice.
18Complainant claims that her failure to be advanced to the front-of-the-house was due to racial prejudice. Respondents protest that this was for them an economic and not a racial decision, because Ms. Lee was the best baker and hard to replace at that time. They claim that as soon as a replacement was found for her she would have been given her opportunity as promised.
19Ms. Lee claims she asked for more employment time but was not given it. Respondents say she was offered it.
20Respondents suggest that Ms. Lee's dissatisfaction arose from personal motives involving her boyfriend and another woman, both of them working at TJ's. Ms. Lee denies that these personal matters had anything to do with her attitude toward TJ.
21Respondents also assert that Ms. Lee did not have a full picture of the front-of-the-house, and that there were other non-white employees.
22Ms. Sandy Chattergoon, a front-of-the-house staff person of South East Asian origin, testified that Yvonne McNeice, a black member of the kitchen staff, solicited her to give testimony against TJ and intimated that there might be a cash reward for doing so. Ms. McNeice, in her testimony, denied having made this remark.
23Witnesses appearing supporting Ms. Lee's picture of a "poisoned atmosphere" were all non-white. There were also other members of the staff (who were questioned by Ms. Fiona Crean, then an investigating officer for the OHRC) who were reported as supporting Ms. Lee's feelings about TJ's. However, they did not appear at the hearing. Respondents call Ms. Crean's investigation unfair and incomplete.
In contrast, witnesses appearing for the respondents were white, with the exception of Ms. Chattergoon.
24In sum, respondents deny the validity of the claim that there was a "poisoned atmosphere" at TJ's, and furthermore assert that holding Ms. Lee back was temporary and solely based on the fact that she was an excellent baker and could not easily be replaced.
Legal Aspects
25The complaint is based on section 4(1) and section 8 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, (hereafter cited as the Code") which provide:
4.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin . . .
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
26Commission counsel submits that verbal abuse has been judged to create an adverse environment which offends the Code. He contends that the steps taken by management to curb such abuse were not reasonable under the circumstances.
27The reasons for considering verbal abuse as an element in creating an adverse work place were set out by Prof. Cumming in Dillon v. F.W. Woolworth Ltd. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 at D/761 (para. 6703) and D/762 (paras. 6717 and 6718):
Thus it is clear . . . that verbal abuse in itself can constitute a breach in the Code . . . The right of all employees to have a workplace free of the emotional and psychological manifestations of racial prejudice has also been upheld in the United States by the Equal Employment Opportunities Commission . . . [T]he EEOC has imposed a positive duty upon the employer to rid the workplace of racial slurs exchanged between its employees. Thus, where employers acquiesce in the discriminatory remarks made by white employees against fellow black workers, the Commission has found the employer to be liable.
28According to this jurisprudence, which I accept as relevant for the present case, Ms. Lee would find herself in an adverse environment if indeed racial slurs and other untoward practices occurred, even if such discriminatory practices were not directed against herself. It remains therefore a question of factual evidence to establish whether such incidents did occur, and if they did section 4(1) of the Code was offended.
29The Commission further submits that, since according to section 8 of the Code discrimination can be direct or indirect, the complainant Ms. Lee was discriminated against by the effect and consequences of the environment (indirect discrimination), as well as by the failure of management regarding her advancement (direct discrimination).
30Counsel further submits that TJ cannot absolve itself from responsibility, because the kitchen managers and the general manager were part of the "directing mind" of the corporation. The cited jurisprudence, which I deem relevant for the present case, is another decision by Prof. Cumming, Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/2194, para. 18515:
Where the employer is a corporate entity, and an employee is in contravention of the Code, and the employee is part of the directing mind of that corporation, then the employer corporation is itself personally in contravention.
31Counsel holds that the respondent Ross Simpson was the general manager of TJ and that the kitchen managers, Laframboise and Kidd, also had the power to hire and fire and that therefore they too would have to be considered part of the "directing mind." I have some doubt about the latter two as fitting the category but, as will be clear later on, Mr. Simpson himself was aware of the situation and took it upon himself to correct. Whether or not he did a reasonably adequate job of it becomes a matter of evidential interpretation.
32The Commission requested that Ms. Lee be compensated for the economic loss she sustained, because TJ's alleged infraction of the Code caused her to resign and accept a position elsewhere, at lower wages. A reasonable time for computing such damages was suggested. Also, general damages and interest charges were requested.
33Respondents submitted no legal comments and relied on the factual evidence alone, asserting that reasonable steps had been taken to correct verbal abuse and that there was neither direct nor indirect discrimination.
Establishing the Facts
34The Board of Inquiry was faced with two basic questions:
Was there direct discrimination against Ms. Lee; that is, was she held back from promotion to the front of the house because of her ancestry?
Was there indirect discrimination against her; that is, was the environment in which she worked tainted by racial discrimination? And if so, did she quit because of it or were there other reasons not related to the Code and its protective clauses?
1. WAS THERE DIRECT DISCRIMINATION?
35Commission counsel claims that Ms. Lee had all the qualifications which the expert witness, Mr. Siegfried Bulla of George Brown College for the Applied Arts, suggested a good waitress should have (Evidence, pp. 9ff.). In the normal course of circumstances, said Mr. Bulla, it is wise to promote staff from within the organization, for this increases loyalty and makes for long-term good relationships. Instead, according to counsel, TJ frequently hired outside staff, and when inside staff was promoted the promotion went almost entirely to white persons. Ms. Lee was an excellent worker and all she lacked was experience, which she could not obtain because the opportunity was denied her.
36Ms. Lee, when making her request of advancement to Mr. Simpson, pointed out the discrepancy between whites and non-whites in the front-of-the-house.
And that's when he told me, "Show me the ethnics who can do the job and I'll hire them." (Evidence, p. 52).
37The testimony was corroborated by Ms. McNeice who quoted Mr. Simpson as saying to her, when she requested advancement, "When the minority can prove themselves I'll put them on the floor" (Evidence, p. 235). These uncontradicted remarks did not indicate that the manager was unwilling to hire "ethnics" on principle; the evidence shows otherwise, for he did engage them here and there in the front-of-the-house. It does, however, reflect an unfortunate sentiment often encountered by minorities, that they have to prove their worth by outstanding effort. Average performance will do for others; but a special level is required for minority members. This was in fact so perceived by the witness (McNeice) who herself is black. She reported on her conversation with the manager after he offered her a bussing job:
He offered the bussing, but after the statement that he made I just didn't want it any more. I figured I'd have to work like 200 hours more just to prove myself (Evidence, p. 298).
38The statements attributed to Mr. Simpson were uncontradicted. However, it needs to be noted that he was not present on the day Ms. Lee and Ms. McNeice made them, and when he himself took the stand the next day their testimony in this regard was not alluded to. It is possible that he might have denied making such remarks, but the only evidence I have before me is not out of keeping with Mr. Simpson's racial view in general (which view will be discussed later on). Accepting therefore the quoted statements to have been made, I find that they are clearly indicative of stereotypical judgment which any members of a minority group would rightly feel was directed at them.
39Did Ms. Lee feel that this was the reason for her failure to advance? She says it was.
At first I thought they were doing it just to me but they did it to Mr. Wong and Mr. Leung. We felt that we weren't going to get anywhere. (Evidence, p. 55.)
Yet at the same time there is ample evidence that management thought very highly of Ms. Lee. All the testimony heard supported that conclusion. Certainly she was recognized as an excellent baker and TJ was eager to keep her (see, e.g. Evidence of Mr. Simpson, p. 502).
40At the same time it is also clear that TJ played a delaying game with her as regards her request for moving to the front. She was, in my opinion, deliberately held back — whether or not she would have been held back for long is a theoretical question which is not before the Board.
41But was this holding back due to discriminatory practice on the part of TJ's?
I do not think so. There are two reasons for my conclusion:
a. Other minority members, Mr. Sam Wong and Ms. Sandy Chattergoon, were moved from the back to front;
b. I believe that TJ held Ms. Lee back for purely economic reasons. She was the best baker around and replacing an excellent specialist who, besides, was familiar with all the stations of the kitchen, would not be easy. Holding her back, for a while at least, with promises of future advancement seemed to management the most advantageous thing to do (Evidence, p. 509).
42Ms. Lee was very disappointed and vented her disappointment by word and action.
a. During an especially busy time she failed to carry out an order from the kitchen manager to help out in the kitchen proper (the bakery being elsewhere on the premises) and was suspended for her refusal — a punishment which, significantly, she deemed appropriate. Why did she refuse? She testified that this was due to her general disappointment with TJ's; her feelings toward her employer had changed over the last few months and her refusal was an expression of her disaffection. She no longer cared (Evidence, p. 56).
43Respondents found her explanation not credible, because, they claimed, this was a marked and in effect sudden change from her previous very positive attitude towards TJ's. They suggested that, instead, personal reasons played a decisive role. Ms. Lee was at the time living with Mr. Steve Swensen, an employee of TJ's, who was said to have spent a night with another employee, Ms. Linda Strawbridge, a waitress. Ms. Lee's personal life was upset and this, it was submitted, might have been the real reason for her refusal to help out in the kitchen. Ms. Lee was suspected of having written offensive graffiti in the women's washroom following this incident, and her relationships at TJ's appeared to have changed after this. However, Ms. Lee asserted that her personal life was kept separate and had nothing to do with her refusal which was based on her attitude toward TJ's.
44While the respondents claim that personal matters did play a decisive role in Ms. Lee's shift from enthusiasm to disaffection, there was no objective proof to sustain the claim; and in the absence of such proof I must assume that Ms. Lee's refusal was due to a disaffection related to her employment, not her personal life.
b. Ms. Lee gave a talk during a TJ store party in which she compared the front-of-the-house with the back. Apparently her speech was rather acrimonious and earned her a sour reaction from the front personnel, but at least one member of the back staff said he too was shocked (Evidence, p. 469). It would appear that this action on Ms. Lee's part was, like her refusal to help out in the kitchen, based on her resolve to be done with TJ's. She no longer cared what others would think of her, and especially so since she had previously aspired to join the front staff. Her talk would certainly make such a move unpleasant for her, for her new colleagues would remember her outburst and be slow in establishing normal relations with her (Evidence, p. 470; testimony of D. Miller).
45Judging this aspect of her disaffection I am inclined to believe her that she perceived no future for herself at TJ's. She had hoped for much and did not get anywhere, at least not fast enough for her liking. She linked her feeling to her perception of discrimination, but she could not show that it was practised directly against her. She saw a pattern and concluded that her chances were small. She resigned and accepted a position as manager of The Picture Store, at lower pay.
46Was her conclusion reasonable, in the face of her admittedly courteous treatment by the management, who held her in high esteem as a good worker?1
This raises the question of employment patterns, which were, according to Ms. Crean's analysis, badly lopsided in favor of white personnel at the front-of-the-house. It was shown that an overwhelming percentage of the waiting staff were white. Ms. Lee's conclusion that in view of such patterns there would be little chance for her and that the reasons offered for holding her back were mere excuses, seems reasonable from her perspective.
47But was it in fact management's reason? Was it based on a prohibited ground or was it, in her case, an economic decision? I believe the latter to be true. The very excellence of her performance as a baker was a hindrance to granting her request for promotion. Good personnel of her kind were apparently hard to come by. I do believe that in her case management's delaying tactics were no more than that: an attempt to hold off the day when they would have to look for another baker. They did not foresee that this would lead to her resignation, and when it did come she was given a first-rate reference. I conclude that Ms. Lee did not suffer from direct discrimination as alleged. However, she also claimed indirect discrimination based on section 8 and this needs examination in some detail.
2. WAS THERE INDIRECT DISCRIMINATION?
48Indirect discrimination in employer/employee relations may be said to exist when the workplace exhibits an atmosphere of prejudice which makes work difficult or impossible for the employee. Expressed in legal terms this is "discrimination by effect or consequence." The Code [section 8] declares:
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
49The infringement need not be intentional, a matter which was treated at length on Dhaliwal v. B.C. Timber (1983), 1983 CanLII 4681 (BC HRT), 4 C.H.R.R. D/1520 in a British Columbia case; and Bhinder v. Canadian National Railway Co., 1985 CanLII 19 (SCC), [1985] 2 S.C.R. 561, 7 C.H.R.R. D/3093 in a decision of the Supreme Court of Canada. The latter cites a decision under the Ontario Human Rights Code: Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102 and endorses the principle there set forth. Says McIntyre J.:
I adopt the reasoning expressed in O'Malley and conclude that the definitions of discriminatory practice . . . extend to both unintentional and adverse effect discrimination.
50It therefore does not matter whether Mr. LaGamba as the owner of TJ or Mr. Simpson as its general manager meant to discriminate. What matters is whether the work environment they provided was free from discriminatory practice and whether, if such practice did prevail, it was a factor in Ms. Lee's resignation.
51Complainant alleges that such practice existed in two respects:
a. preferential hiring for the front, especially the waiting staff, as proved by the overwhelming number of whites there employed;
b. the constancy of racial slurs by supervisory personnel, including the respondent general manager himself.
52a) Preferential hiring. The evidence submitted by Ms. Crean (Exhibit 6) provides two tables. One shows employees hired before or terminated by March 1985, and the other employees working as of April 1985 (this roughly coincides with the time the complaint was served on TJ).
53In both lists the preponderance of white personnel is obvious in the waiting staff (waiters/waitresses and bussers), which is the category to which Ms. Lee attempted to gain access. There is, however, a significant percentage (about 30 percent) whose ancestry is not known, and this lacuna might or might not change the picture.
54The complainant's counsel made this white/non-white ratio an important point in his contention that racial bias was at play. He emphasized that the waiting staff was the principal contact with the customer, and it was clear to him that in this crucial area whites were preferred.
55However, while the list shows a clear disproportion in the waiting staff, no such glaring disproportion seems apparent elsewhere. Ms. Crean did not examine a number of categories which have prominent contact with customers, such as hosts/hostesses, bartenders, and cashiers. As for bussers (who serve water and coffee, assist customers in minor requests, and clear the tables), they too have contact with customers and here the first list shows no disproportional racial distribution and the second list shows more non-whites than whites.
56Furthermore, the position of steward, a position of trust (he/she has access to the supply room storage) was occupied on a 50:50 racial basis, and the witness Ms. Chattergoon, of East Indian ancestry, was on the weekends in charge of the whole restaurant (Evidence, pp. 386–387).
57This leaves the discrepancy in the waiting staff. Commission counsel showed that new job applications were filled out at the bar and that generally whites only were seen to apply. Respondent asserts that he simply could not get non-whites to apply and had in fact asked Mr. Sam Wong (of Chinese ancestry) to have his friends who might be interested come in and seek out such jobs.
58In this latter respect respondent's argument is not compelling. Mr. Wong himself could not get back to serving in the front where he had briefly been (though not much later he became a waiter and even headwaiter at the Hilton Harbourfront Hotel); and further, when discriminatory racial practices are or seem to be at play in a particular environment, non-whites will tend to stay away. This kind of circular development (absence of non-whites leads to a lack of applications by non-whites which leads to a preponderance of whites) is common in many work situations, and the effect is an entrenchment of discriminatory practices, whether or not they are intended.
59This circular effect seems to have been present in TJ's waiting staff which pulled in the highest pay. The minimal presence of non-whites gave Ms. Lee, not unreasonably from her perspective, the impression that she would not be advanced. In addition, there were other circumstances which soured the environment.
60b) Racial slurs. It was admitted by respondents that racial slurs and stereotypical disparagement of non-whites occurred at TJ's and was prevalent in the back-of-the-house where Ms. Lee worked. Some racial remarks were passed about Chinese workers being "cheap," and on occasion Chinese accents were imitated. More important, the supervisory staff too indulged in slurring non-whites. The kitchen managers (Michael Kidd and especially Ann Laframboise) often used profanities and said "move your black ass." The testimony of Ms. Yvonne McNeice was to this effect:
She would call us "niggers" and tell us to move our black asses, and stuff like that /. . . She did it quite a bit (Evidence, pp. 237–238).
61Ms. McNeice also spoke of the way the Jamaican kitchen staff were treated.
Q. You speak in your statement about Ann [Laframboise] criticizing the way Jamaicans spoke?
A. Mm-hm.
Q. Claiming they "spoke and acted like jungle monkeys?"
A. That's the term she used, yes.
Q. She used that statement, did she?
A. Yes.
Q. Did you hear her say that yourself?
A. Yes.
Q. You did?
A. She said it a lot to George Nelson and Devon because they had a very strong Jamaican accent and it was even hard for me to understand them . . . [Her remarks meant] that we were a lower class of human beings (Evidence, pp. 247–248).2
62After a while, it seems, the staff got used to it and Michael Kidd especially was otherwise well regarded. Getting used to racial slurs is, however, no warrant for making them permissible. People have a habit of habituating themselves to all sorts of objectionable conditions which they do not feel they can correct. That accommodation does not make them any more acceptable and remains prohibited by the Code. Ms. Lee in fact claimed that, though she herself was not the target of the epithets, she was bothered by these expressions, because they demeaned people who deserved better by their supervisors.
63It is uncontradicted that the slurring occurred frequently, and in fact Mr. Simpson, when it was brought to his attention, remonstrated with the kitchen managers on two occasions. He did not follow this up however; apparently he did not think it a serious matter, considering it perhaps no more than a form of slang. The testimony of Mr. Wong in this regard is particularly revealing (Evidence, p. 221):
A. . . . I did talk to Ross [Simpson] about it because he was there the majority of the time and he did not want to talk about anything racial at all.
Q. He didn't want to talk about anything racial?
A. To me. If I brought up the issue even slightly he didn't even want to hear about it.
64It appears that Mr. Simpson had no full understanding of the effect of such remarks, in that those who are at their receiving end suffer a diminution of their self-esteem and are constantly reminded of their inferior status. This constitutes without question a tainting of the work environment which is precisely what the Code attempts to combat.
65This insensitivity was aggravated by Mr. Simpson's own behavior. He was seen to be especially rude to the black dishwashers (Evidence, p. 215) and in general was harsher with non-whites than with whites (p. 196), and generally treated non-whites differently (pp. 308–309; reported by Ms. Crean as a statement by Daniel Jolliffe, a black worker, who added "Ross looked down on non-whites" and called them "dumb blacks").
66Mr. Simpson was said to have made a tasteless joke about similarities between chickens and blacks in front of his black staff (p. 215), but he denied it (p. 512).
67On one occasion, when he heard that the store room key had been given temporarily to a black employee, he was heard to say, "You know you shouldn't give those niggers the key" (p. 131). Mr. Simpson himself denies that he used the word "nigger" and asserts he said "black dishwashers" (p. 581) but does not deny the substance of a racial slur: "I immediately knew that was a wrong statement to make" (p. 540).
68Whatever the exact phrase, word got quickly around and produced grave discontent in the back-of-the-house, of which Ms. Lee was a member. When the discontent came to Mr. Simpson's attention he called the black staff to his office on an individual basis and apologized to each; however, at least one of them characterized his retraction as "not really an apology," as if Mr. Simpson had said, "If it hurts you that much, you know, well, I'm sorry for what I did" (p. 133).
69I already discussed above (paras. 36976 to 36979) that racial slurs and verbal abuse constitute prohibited practices under the Code. It is worth adding that Prof. Cumming stressed especially [in Dhillon v. F.W. Woolworth Ltd., supra, at D/762, para. 6718]:
The employer has a duty to keep the work environment free of racial insults and must take reasonable steps to stop them.
70Did Mr. Simpson make reasonable attempts to do so? In my opinion he made only occasional attempts, but no more. Watching him on the witness stand I came to the conclusion that, though he abjured any will or intent to discriminate, he lacked a full understanding of the sensitivities of his employees. Furthermore, his own above-mentioned outburst (though later he tried to explain it away) certainly must have given the impression that this was the way he really felt. It is one thing for such language to occur among employees of equal status, it is another when the general manager delivers himself of it. This is also the likely explanation why Mr. Simpson did not take firm steps to follow up on the complaints against the language of the kitchen managers.
71The fact that Mr. LaGamba played soccer with his black kitchen staff was no true counterweight to what took place in the actual work environment, and it is here, Ms. Lee says, that she felt discrimination at work.
72There were further allegations which touched on other discriminatory practices. The non-white day staff was, according to Ms. Lee, more critically supervised than the mostly non-white night shift, but this was not clearly established. When a theft occurred on the premises the impression was that a black employee was singled out for police questioning. Though Mr. LaGamba subsequently apologized both to the employee and his parents for having harbored erroneous suspicions, the incident appears to have lingered in the minds of his non-white staff. Two of the witnesses (Messrs. Wong and Saint) testified that in their view the work environment was tainted (see e.g., Evidence, pp. 207, 184).
73Respondents brought in witnesses who disputed that discrimination was at work. With one exception these were all white and did not therefore experience it personally. One non-white witness, Ms. Chattergoon, who is still employed at TJ's and serves in the front, also denied discrimination but emphasized that she tried to keep strictly to herself and not to get involved (Evidence, p. 390). I could draw no definite conclusions from her testimony in regard to indirect discrimination.
74However, the important position she occupies (in that she is in virtual charge of the restaurant on weekends; Evidence, pp. 386–387) gainsays the allegation that management was totally unwilling to give non-whites a break. Also, Mike Morrison, a black, became kitchen manager (p. 354) and Dennis Taylor, also black, the steward (p. 331).
75Ms. Chattergoon made one serious allegation: that Ms. McNeice came to her and asked her to testify against management and held out to her the possibility of some cash reward. Ms. McNeice in turn sternly denied this, and while I would prefer Ms. Chattergoon's testimony in this regard, the issue was not pursued and it was not shown that Ms. Lee was involved in this matter. If in fact the incident did take place, as it may have, Ms. McNeice may have acted entirely on her own and, there being no evidence to the contrary, I must look at the complainant's situation in her own right.
76Based on the facts delineated above I have concluded that TJ's work environment was tainted by prohibited practices which either originated from or were known to the management.
77It remains to be asked: Did Ms. Lee leave her work because of such indirect discrimination? I believe that she was at least in part influenced by these circumstances.
78Mr. LaGamba wondered why she did not tell him so when he asked her to stay and made further promises to her. However, her failure to reveal all her reasons at that time cannot be held against her. The relationship between employee and employer is not one of equals and she could hardly be expected to enter into an argument on this score with Mr. LaGamba. Besides, Ms. Lee was at this point resolved to be done with TJ's. She was disappointed personally that she could not advance and that her long-range plans seemed to recede more and more. She looked at the preponderance of whites in the waiting staff and felt that the work atmosphere in the back was not healthy. At any rate, when she quit TJ's she had a job lined up at The Picture Store which she knew would pay her a lower wage.
79It suffices for me that the existence of indirect discrimination played some role in her decision to leave.
Whether or not there were other motivations at play I cannot determine. But it is accepted jurisprudence that when a person is discharged because one of the reasons for such action was based on a prohibited ground, the action is tainted even if there [were] other reasons present (see e.g., Hendry v. Liquor Control Board of Ontario (1980), 1980 CanLII 3901 (ON HRT), 1 C.H.R.R. D/160), and Horton v. Niagara (Regional Municipality) (1987), 1987 CanLII 8548 (ON HRT), 9 C.H.R.R. D/4611. If this reasoning prevails on the side of the employer then surely it must prevail equally on the side of the employee. If one of the reasons for leaving the employment is the presence of prohibited circumstances, the discontinuance may be said to be actionable under the Code. This seems to have happened in Ms. Lee's case, and I so rule.
Ms. Lee's complaint is upheld on the basis of indirect discrimination, in accordance with sections 4(1) and 8 of the Code.
Remedies
80Both respondents are jointly and severally responsible to afford Ms. Lee adequate compensation. In the case of TJ's, the responsibility arises from section 44(1) of the Code aside from the fact that Mr. Simpson as general manager was a directing mind of the establishment, and the latter is held responsible for his actions (see Cameron v. Nel-Gor Castle Nursing Home, supra, at D/2194). The general employment practices of TJ's which contributed to the complainant's dissatisfaction are clearly the responsibility of the corporation.
81Counsel for the Commission requests that Ms. Lee receive the difference between her weekly earnings at TJ's (averaging $272) and her earnings at The Picture Store ($200), that is to say, $72 a week, and asks that this sum be paid her for twenty weeks, after which time she left Toronto and returned to Vancouver.
82In view of the fact that Ms. Lee worked at TJ's from June 1983 until early January 1985, or more than three and a half years, a reasonable amount of special damages appears justified. But is the equivalent of twenty weeks' pay reasonable?
83A recent decision by the Supreme Court of Ontario [Piazza v. Airport Taxicab (Malton) Assn., 1987 CanLII 8586 (ON HCJ), 9 C.H.R.R. D/4548 (S.C.O. Div. Ct.)] dealt with this question. In reducing the amount awarded by the Board of Inquiry Mr. Justice Steele said [at D/4548, para. 35371]: "An amount to be awarded for loss of wages is restricted to the period of time of reasonable notice less any mitigation thereof."
84I must guide myself by this ruling and therefore hold that eight weeks would be a reasonable time of notice in Ms. Lee's case. She is therefore awarded $576. I add thereto the interest accruing from March 10, 1986 about which time the complaint was served on the respondents.3 At the rate of 13 percent (set by the Registrar of the Divisional Court), this would amount to an additional $131.04, for a total of $707.04.
85No general damages are awarded to Ms. Lee, because the provision of section 40(1)(b), which allows for such an award "where the infringement has been engaged in wilfully or recklessly," is not applicable in this case.
I do, however, apply section 40(1)(a) and require respondent TJ to
hold, under the direction of the Commission, a staff seminar which will aim at impressing all employees with the provisions of the Code, and especially with regard to creating a work environment free of discriminatory language and practice;
post the Preamble and sections 1 to 8 of the Code in the restaurant in full sight of the employees;
report to the Race Relations Division of the OHRC what steps have been undertaken to attract and engage members of minority groups for front-of-the-house positions, and especially waiting jobs and, if the kind of condition prevailing in 1985 still exists, to take steps that will attempt to promote adequate and feasible redress. The Commission, if it so desires, may during a period of two years apply to me for such steps as may be indicated, during which time I shall remain seized of the matter.
Order
86The Code having been breached as set out above, the respondents are severally and together ordered to pay Ms. Janice Lee the sum of $707.04, for special damages and interest. The amount is payable by December 31, 1987, after which time it will attract additional daily interest charges. The Board will remain seized of the matter until the judgment is satisfied.
87Respondent T.J. Applebee's Food Conglomeration is ordered to
hold, at the direction of the Commission, a staff seminar which will aim at impressing all employees with the provisions of the Code, and especially with regard to creating a work environment free of discriminatory language and practice;
post, in full sight of the employees in the restaurant, the Preamble and sections 1 to 8 of the Code;
report to the Race Relations Division of the Ontario Human Rights Commission what steps have been undertaken to attract and engage members of minority groups for front-of-the-house positions, and especially waiting jobs and, if the kind of condition prevailing in 1985 still exists, to take steps that will attempt to promote adequate and feasible redress. The Commission, if it so desires, may during a period of two years apply to me for such steps as may be indicated, during which time I shall remain seized of the matter.
NOTES
Footnotes
- Michael Kidd, kitchen manager, was reported by Ms. Crean to have said to her:"She was fabulous" (Evidence, p. 319; Kidd's statement was not signed by him as he could not be located).
- In giving weight to this statement (which was uncontradicted) I am aware that Ms. McNeice was not a valued employee of TJ's and likely harbored some resentment against the firm. However, I had no reason to discount the above specific recollections.
- The date on the human rights complaint is February 25, and the first witness statement (by Yvonne McNeice, taken by Fiona Crean) is dated March 29. March 10 is therefore an assumed approximate date when the complaint was served.