BOARD OF INQUIRY (Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.0. 1990, c. H.19, as amended;
AND IN THE MATTER OF the complaint by Lara Eldridge, dated June 5, 1996 and amended October 13, 1998, alleging discrimination in employment on the basis of sex, sexual harassment, sexual solicitation and reprisal.
B E T W E E N:
Ontario Human Rights Commission
- and -
Lara Eldridge
Complainant
- and -
2887126 Canada Inc. c.o.b. Imperial Buffet
Joseph Lee
Phoebe Lee
Wei Chiong Chan (a.k.a. John Chang)
Respondents
INTERIM DECISION
Adjudicator: Katherine Laird
Board File No: BI-0256-99
Decision No: 00-004
Board of Inquiry (Human Rights Code) 505 University Avenue, Suite 201 5th Floor, Toronto, On M5G 2P3 Phone (416) 314-0004 Toll Free 1-800-668-3946 Fax:(416) 314-8743 TTY: (416) 314-2379 TTY Toll Free: 1-800-424-1168
A P P E A R A N C E S
Ontario Human Rights Commission ) Anthony Griffin Lara Eldridge, Complaint ) On her own behalf Wei Chiong Chan, Personal Respondent ) On his own behalf
INTRODUCTION
Lara Eldridge (“Eldridge”) filed a complaint with the Human Rights Commission (“Commission”) on June 5, 1996, alleging that she had experienced sexual harassment and solicitation, as well as discrimination on the basis of sex, as an employee of a restaurant in Cobourg carrying on business under the name Imperial Buffet. The respondents named in the complaint were the Imperial Buffet, John Chang, a co-worker alleged to have been the harasser, and Joseph Lee and Phoebe Lee (“Lees”), who both served as managers at the restaurant.
On October 13, 1998, the complaint was amended to add as respondents the correct corporate name of the restaurant, 2887126 Canada Inc., the corporate name of another restaurant, Imperial Buffet Inc., the legal name of John Chang, Wei Chiong Chan (“Chan”), and a director of the original corporate respondent, Yu Sheung Tony Kong (“Kong”). As well, the amendments added an allegation that Eldridge had suffered reprisal in relation to her refusal of sexual advances by Chan. The amended complaint was referred to the Board of Inquiry (“Board”) on June 4, 1999.
The Commission experienced difficulties in effecting delivery of its pleadings and other documents to the respondents, with the exception of Chan. These difficulties were the subject of a motion heard on November 4, 1999. On November 26, 1999, I released an Order stating that I was satisfied that the Lees had effective notice of the Commission’s documents, and of the hearing. However, the evidence did not satisfy me that it was more likely than not that the Commission’s documents had come to the attention of either 2887126 Canada Inc. or Kong. In the case of 2887126 Canada Inc., I found that the Commission was entitled to rely on its mailing of the documents to the registered corporate address as effecting deemed delivery in the absence of contrary evidence.
The hearing into the allegations of discrimination took place on March 8, 2000. The Board retained interpretation services for Chan at the hearing, as well as at the earlier mediation meeting. At the outset of the hearing, Counsel for the Commission sought and obtained an order removing the second restaurant, Imperial Buffet Inc., and Kong, as respondents in the proceeding on the basis that there was no evidence tying either to the events at issue in the complaint. This is my order on the merits of the complaint.
EVIDENCE
In addition to the testimony of two of the parties, Eldridge and Chan, I heard evidence from the complainant’s husband, Darren Eldridge. There were no other witnesses. Neither Eldridge nor Chan were represented by counsel. The Commission led the evidence in support of the complaint, but Chan conducted a limited cross-examination of Eldridge only. Neither the Lees nor the remaining corporate respondent, 2887126 Canada Inc., were present or represented at the hearing.
The Commission did not bring forward corroborative evidence of the interaction between Eldridge and Chan in the restaurant. Darren Eldridge gave evidence as to his observations of his wife’s behaviour in response to her experiences. This evidence is relevant to remedy, but of limited corroborative value. Accordingly, my findings of fact are based primarily on my assessment of the relative credibility of Eldridge and Chan.
Testimony of Lara Eldridge
Eldridge testified that she began working as a cashier and bartender at the Imperial Buffet restaurant at the end of August 1995. She was 22 years old at the time, married with two young children. Her supervisors were Phoebe Lee, Joseph Lee and a person by the name of Chris Yeung who was not named as a respondent.
Eldridge testified that she initially enjoyed her job. Her work did not bring her into contact with the wait staff until Thanksgiving weekend, when her job was expanded to include bussing tables and preparing cutlery in napkins. She testified that, from this point on, she was in frequent contact with Chan, and that he began to make sexual comments to her. For example, he told her that she had arms like a chicken and said that in his language “chicken” was slang for “whore”. She testified that he asked her to meet him at a hotel for “a bite”, and said “not food”. Eldridge testified that she glared at Chan when he made these comments and that she began to try to avoid him in the restaurant whenever she could, arriving at work at the last minute and leaving the restaurant between shifts.
After a couple of weeks of hearing these comments from Chan, Eldridge stated that she approached the Lees about Chan’s behaviour. Eldridge testified that Phoebe Lee said that she would speak to Chan and that Joseph Lee appeared to agree with Phoebe. Eldridge stated that, shortly thereafter, she saw the Lees both speak to Chan in Chinese, but she did not know whether it was about her complaint.
Eldridge testified that, after her conversation with the Lees, relations with Chan became more difficult. He continued to talk about meeting her at a hotel, and renting a room by the hour, but his conduct towards her also became nasty. She testified that, for example, he would slam down his tray on the table where she was working.
Eldridge testified that her hours of work were reduced by eleven hours in the next schedule posted after her complaint to the Lees about Chan’s conduct. Her weekly hours were reduced from 29 hours to 18 hours a week. She testified that Phoebe Lee was responsible for the work schedule and that no other staff person had their hours reduced at this time. In fact, it was Eldridge’s testimony that a new person was hired due to increased business volume.
Eldridge testified about a final incident that caused her to leave her employment. On January 3, 1996, she was setting up the cutlery before the restaurant opened. She testified that Chan came up behind her and pushed her against the counter with his groin against her for a moment. She stated that she turned around, swore at him, and then went home. She testified that her husband persuaded her to go the police, which she did, and that the police told her not to return to her employment. Chan was eventually convicted of sexual assault in respect of the incident.
Testimony of Wei Chiong Chan
Chan testified that he “never did anything” inappropriate toward Eldridge, either verbally or physically. He stated that his remark about her arms was a reference to a newspaper advertisement and was misunderstood. In cross-examination, Chan acknowledged that the word ‘chicken’ can be used as slang for ‘prostitute’ in the Chinese dialect which he spoke.
Chan denied saying any of the other things attributed to him by the complainant. In particular, Chan testified that Eldridge was lying about the incident on January 3, 1996. He testified that it did not happen and that she could not have felt his groin through his apron in any event because of the pocket on the apron holding his receipt books.
Chan testified that Eldridge’s hours were cut because she was stealing tips, not because of her complaints about his conduct. He stated that there was a witness at the criminal trial who could testify about his truthfulness on this point, but he did not remember her name. He stated several times, both as a witness and in representing himself, that he did not realize that he was allowed to bring witnesses to the hearing.
In cross-examination, Chan acknowledged that he had counsel at the criminal trial, and that several witnesses testified on his behalf. He testified that he did not appeal the conviction because he could not afford to do so. Chan also stated that he believed that he was treated unfairly in being charged and that it was because he was an “alien”. He testified that there were very few Chinese in Cobourg.
At the end of his cross-examination, Chan stated that there was another story, “whether you believe it or not”. He testified that he worked with Eldridge for a long time, and that “she dressed so beautifully at work”. In responding to a question, Chan asked: “Is it necessary to dress so beautifully?” Chan then stated: “This person practically set the trap to catch me”.
FINDINGS OF FACT
I accept the testimony of Eldridge over that of Chan. In assessing the credibility of Chan, I have considered the fact that he did not bring any witnesses to support his explanation for the cutback in Eldridge’s hours of work. I do not accept his statement that he was unaware that he was allowed to bring witnesses to testify on his behalf. Prior to convening the hearing by conference call in June 1999, the Board provided Chan with a copy of our Guide to Hearings which is prepared particularly for unrepresented parties. The Board also provided Chan with two interpretators at the mediation meeting, at which the hearing process is routinely explained by a member of the Board and all questions are answered. I was advised by Commission counsel, and it was not disputed, that all documents related to the hearing were translated for Chan at the end of the mediation meeting.
Given that Chan had already been through a criminal trial, it is inconceivable that he would fail to realize that he was entitled to bring forward witnesses to support his case.
I have also considered the comments which Chan made at the close of cross-examination, in which he commented that Eldridge’s appearance set a “trap” for him.
Accordingly, I find that Chan subjected Eldridge to a series of comments which solicited a sexual relationship. On a balance of probabilities, I find it more likely than not that Chan knew by Eldridge’s reaction, or should reasonably have known, that his comments were unwelcome, whether or nor Phoebe or Joseph Lee spoke to him about his conduct.
I also accept Eldridge’s evidence that she told the Lees about Chan’s conduct and that her hours of work were reduced shortly thereafter. Chan corroborated Eldridge’s testimony about the reduction in her hours of work by Phoebe Lee. Given the fact that the reduction in hours was effected in the next work schedule following the complaint to the Lees, I find, on a balance of probabilities, that the reduction in hours was a negative consequence of the complaint.
I can make no finding as to whether or not the Lees in fact spoke to Chan about his conduct. There was no evidence that management at the restaurant took any steps to deal with Eldridge’s complaint. If management did take any action to address the complaint, I find that such action was ineffective. I find that Chan’s inappropriate conduct towards Eldridge continued, culminating in the incident on January 3, 1996.
Finally, I accept Eldridge’s evidence with respect to the final incident with Chan. Although Chan testified that Eldridge was lying, I was reinforced in my assessment of her credibility by the fact that Chan was found guilty of sexually assaulting Eldridge on January 3, 1996. Although Chan testified that he was wrongfully convicted, I am entitled to rely on the finding of the trial judge that a sexual assault took place in considering whether or not an incident occurred which constituted sexual harassment pursuant to the Code.
Accordingly, I find that on January 3, 1996, Chan pressed his groin against Eldridge and that she immediately left the restaurant. Based on Eldridge’s evidence, I find that she terminated her employment following this incident and as a direct result of the fact that the management had shown itself unable or unwilling to take any effective steps to address her experience of harassment.
FINDINGS OF LAW
The Code defines harassment, in s. 10(1), as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. Based on my findings of fact, the conduct of Chan towards Eldridge constituted harassment in employment on the basis of sex, contrary to s.7(2) of the Code. I also find that the harassment infringed Eldridge’s right under s.5(1) to equal treatment in employment without discrimination because of sex.
The Commission also sought a finding that the reduction in the complainant’s hours of work constituted a reprisal by Phoebe Lee and the corporate respondent for the rejection of the sexual advances of Chan, contrary to s.7(3)(b) of the Code. In my view, the evidence supports a finding of reprisal under s.8, rather than s.7(3)(b), of the Code. I have already found that the reduction in hours was triggered by the complainant having claimed that her rights were being infringed by Chan’s conduct. The complaint to the Lees about the sexual harassment is sufficient, even without specific reference to the Code or to the human rights enforcement process, to entitle the complainant to the protection of s.8 of the Code which states:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
Accordingly, I find that Phoebe Lee infringed Eldridge’s right under s.8 to be free from reprisal for having complained to management about the conduct of Chan.
CORPORATE LIABILITY
Under s.45(1) of the Code, and pursuant to human rights jurisprudence, the corporate respondent, 2887126 Canada Inc., is responsible for the failure of its managers, Phoebe Lee and Joseph Lee, to take any effective steps to deal with Eldridge’s complaint to them about Chan’s harassment, and is consequently liable for the continuing infringement of Eldridge’s right to non-discriminatory working conditions under s.5(1). The corporate respondent is also liable under s.45(1) for the respondent is liable for the loss of income which Eldridge experienced as a result of the failure of its management to investigate and address Eldridge’s allegations about Chan’s conduct. I have already found that Eldridge quit her job because she had no expectation, based on her experience, that management at the restaurant would take any action to address the infringement of her rights under s.5(1) and s.7(2) to work in a non-discriminatory work environment, free from sexual harassment.
REMEDY
The Commission led evidence from the complainant and her husband to support an award to compensate Eldridge for the impact of her experience of discrimination. I find, based on their testimony, that the experience of harassment took an emotional toll on the complainant, making her jumpy and anxious over an extended period of time. She began to have migraine headaches after quitting her job and she had difficulty sleeping. She testified, and I accept, that because of her nervousness, she found it necessary to increase the security at her home and to change her telephone number. Eldridge testified that she obtained counselling for several months after ending her employment.
With respect to loss of income, Eldridge testified that, although she had another part time bookkeeping job with an accountant at the same time as she worked at the restaurant, she immediately began looking for a replacement job after terminating her employment. She looked for work at restaurants, factories and retail stores in Cobourg and even as far away as Oshawa, because her family needed the money. Eldridge stated that she did not get increased hours at her part time bookkeeping job, and that the accounting business ceased operation in June 1996. Eldridge eventually obtained a sales job at a mall in Cobourg, and began work on December 10, 1996.
Relying on this evidence, the Commission requested that the complainant receive an award of damages as follows:
$1,000 as against Chan to compensate Eldridge for her experience of sexual harassment during the approximately two week period from mid to late October 1995, when she first experienced harassment, and prior to her complaint to management;
$21.501 as against Chan as interest on the award of $1000, calculated at an annual rate of 5%, from the end of October 1995 to March 1, 2000;
$7000 as against all of the respondents, jointly and severally, for the period from the end of October 1995 to January 3, 1996, to compensate Eldridge for her continued experience of harassment and for its impact on her, including anxiety, headaches and marital strain;
$1429.05 as against all respondents, jointly and severally, as interest on the award of $7000, calculated at the rate of 5% from her the date of her last pay, January 23, 1996, to March 1, 2000;
$753.50 as against Phoebe Lee and the corporate respondent as specific compensation for the reduction in Eldridge’s hours of work for the ten week period after her complaint to management until the termination of her employment;
$158.55 as against Phoebe Lee and the corporate respondent as interest on the award of $753.50, calculated at the rate of 5% from the mid-point in the ten week period to March 1, 2000;
$8,541.95 as against all of the respondents to compensate Eldridge for her lost income from January 23, 1996 until she found replacement employment on December 10, 1996;
$1562.82 as against all respondents as interest on the award of $8,541.95, calculated at the rate of 5% from the midpoint in the time period to March 1, 2000.
The Commission did not request a separate award for mental anguish, on the basis that the sum of $7,000, as damages for the ongoing experience of harassment, was appropriate to compensate Eldridge for the experience of infringement and for its impact on her. No public interest remedies were requested.
The respondent Chan did not make any submissions on remedy.
I find the submissions of the Commission on the quantum of remedy to be supported by the evidence and both reasonable and consistent with the jurisprudence. There are, however, two aspects of the Commission’s requested award which I have varied. First of all, I have assessed a separate amount as against Chan in respect of his liability for the continued harassment of Eldridge after the end of October 1995. I did this particularly because the other respondents have not been located and did not participate in the hearing. Without this variation, the complainant would be entitled to collect from Chan the sum assessed against the corporate respondent and its managers in respect of their failure to investigate and address the continuing harassment.
Secondly, the Commission requested that a wage loss award, with interest, be made against all of the respondents, jointly and severally, for the period after the termination of employment. I have decided that this award should be made solely against the corporate employer, and its management employees, Phoebe and Joseph Lee. Because sexual harassment by co-workers continues to be a factor in the workplace, it must be the responsibility of employers and managers to ensure that an harassing employee is appropriately disciplined and that the victims are protected so that they can remain employed. Where an employer fails to take action to address a complaint of sexual harassment, causing the victim of the harassment to terminate her employment, it will seldom, if ever, be appropriate to allow the employer and management to benefit from an order transferring some or all of their liability for the resulting loss of income to the harassing employee. This is true even where, as in this case, the Commission may not be able to collect from the respondents other than the harassing employee. Chan is properly held liable for the emotional impact of the harassment on the complainant, but I decline to also hold him responsible for the complainant’s lost income in circumstances in which he may be the sole respondent available for collection.
ORDER
I hereby order Wei Chiong Chan to pay to Lara Eldridge, within 30 days of this Order, the amount of $1,000, as compensation for her experience of sexual harassment in October 1995, together with interest thereon to March 31, 2000, in the amount of $220.35.
I hereby order Wei Chiong Chan, to pay to Lara Eldridge, within 30 days of this Order, the amount of $2,000, as compensation for her experience of sexual harassment for the period from November 1, 1995 to January 3, 1996, and interest thereon to March 31, 2000, in the amount of $415.71.
I hereby order Phoebe Lee, Joseph Lee and 28871126 Canada Inc., jointly and severally, to pay to Lara Eldridge, within 30 days of this Order, the amount of $7000, as compensation for her continued experience of discriminatory working conditions, for the period from November 1, 1995 to January 3, 1996, and interest thereon to March 31, 2000, in the amount of $1458.50.
I hereby order Phoebe Lee and 28871126 Canada Inc., jointly and severally, to pay to Lara Eldridge, within 30 days of this Order, the amount of $753.50, as specific compensation for her reduced earnings for the ten week period prior to January 23, 1996, and interest thereon to March 31, 2000, in the amount of $161.65.
I hereby order Phoebe Lee, Joseph Lee and 28871126 Canada Inc., jointly and severally, to pay to Lara Eldridge, within 30 days of this Order, the amount of $8,541.95, as compensation for her lost income from January 23, 1996 to December 10, 1996, and interest thereon to March 31, 2000, in the amount of $1598.78.
Post-judgment interest, calculated in accordance with the interest rate established under the Courts of Justice Act, R.S.O. 1990, c.C.43, will commence running thirty days after the date of this Order.
Dated at Toronto, this 31st day of March, 2000.
“Katherine Laird”
Katherine Laird
Vice-Chair