Seguin v. Great Blue Heron Charity Casino, 2007 HRTO 33

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joanne Seguin

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Great Blue Heron Charity Casino

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: October 15, 2007

Citation: 2007 HRTO 33

Indexed as: Seguin v. Great Blue Heron Charity Casino

Human Rights Tribunal of Ontario 400 University Avenue, 7^th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Joanne Seguin, Complainant ) Guy Seguin Ontario Human Rights Commission ) No one appeared Great Blue Heron Charity Casino, ) Sarah Crossley, Corporate Respondent ) Counsel

PRELIMINARY MATTERS

1On August 20, 2003, Joanne Seguin (“Seguin”) filed a human rights complaint with the Ontario Human Rights Commission (the “Commission”) alleging that the Great Blue Heron Charity Casino (the “Casino”) and certain employees of the Casino discriminated against her in her employment because of sex, contrary to sections 5(1) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). On December 13, 2005, the Commission referred the Complaint to the Human Rights Tribunal of Ontario (the “Tribunal”) to be heard and decided. This is the final decision in respect of the Complaint.

2On February 8, 2007, the Tribunal ordered the parties to provide further information in preparation for the hearing of the Complaint, including a full accounting from the Complainant for the two-year wage loss that she was seeking. The Complainant was also ordered to provide all medical reports that she would be relying upon to support her claim for mental anguish damages.

3On February 22, 2007, the Tribunal heard a motion from the Commission to withdraw from the case and a motion from the Corporate Respondent to dismiss the Complaint against the Personal Respondents. Both motions were on the consent of the parties and were granted by the Tribunal.

4At the commencement of the hearing on May 14, 2007, the Complainant advised the Tribunal that she was no longer seeking two years of lost wages, but rather, was limiting her claim from December 2002 to May 23, 2003, the date she resigned her employment with the Casino. The Complainant did not produce any documentation at the hearing in support of her claim for mental anguish damages.

INTRODUCTION

5Seguin commenced employment with the Casino on November 6, 2002 as a part-time washroom attendant. In this position, her sole responsibility was to clean the women’s washrooms. At around the same time, Mathew Welts (“Welts”) was also hired as a part-time washroom attendant. He was assigned exclusively to the men’s washrooms. When Seguin and Welts were hired, the Casino had a policy of same- gender cleaning of the washrooms.

6On or about December 23, 2002, Welts was promoted without competition to a full-time housekeeping position. It is not disputed that Welts was promoted because of his gender. One of the duties of the housekeeping position was cleaning the men’s washrooms. Seguin claims that she was discriminated against on the basis of sex when she was denied the full-time housekeeping position.

7The Casino submits there was no discrimination because there are sound policy reasons for having a person of the same gender clean the women’s and men’s washrooms. The Casino argues that these public policy concerns militate against a finding of discrimination. In the alternative, the Casino asserts that gender is a bona fide occupational requirement (“BFOR”) under the Code and that any differentiation on the basis of sex is therefore justifiable.

ISSUE

8The issue before the Tribunal is whether or not Seguin’s right to equal treatment with respect to employment without discrimination based on sex was infringed by the Casino contrary to sections 5(1) and 9 of the Code and if so, whether the discrimination was justified under section 24(2) of the Code.

DECISION

9The Tribunal finds that the Casino’s requirement that the housekeeping position be filled by a man in December 2002 was prima facie discriminatory and that the Casino failed to establish that gender was a BFOR for the housekeeping position.

FACTS

10There are relatively few facts in dispute in this case. Vince Balfour, the Casino’s Facility Services Manager, testified about the Casino’s operations, and his evidence is summarized in the paragraphs below.

11The Casino commenced operation in 2002 and had nine hundred employees that year. Prior to 2002, it was a bingo hall and was open for two hours in the afternoon and three hours at night.

12In December 2002, 103,526 patrons visited the Casino. The Casino was open from 11:00 a.m. to 4:00 p.m. from Monday to Thursday, and twenty-four hours per day on Friday, Saturday and Sunday. In February 2003, the Casino extended its hours, and opened at 9:00 a.m. from Monday to Thursday, and remained open twenty-four hours per day on Friday, Saturday and Sunday. On May 1, 2003, the Casino commenced opening twenty-four hours per day, seven days per week and remains a ‘24/7’ operation today.

13There are designated male and female washrooms in the Casino for both patrons and staff. The patron washrooms are on the main floor of the Casino. The staff washrooms are located on the main floor and on the second floor. The main floor staff washrooms also have changing facilities.

14When the facility changed from a bingo hall to a Casino, it adopted the practice of male staff cleaning the men’s washrooms and female staff cleaning the women’s washrooms because it was no longer possible to clean only during the hours the Casino was closed. This practice was developed in order to respect the privacy of the Casino’s patrons and for the safety of its staff.

15On November 6, 2002, Seguin signed a contract with the Casino for employment as a part-time washroom attendant. Her employment was subject to a ninety-day probationary period. Seguin’s sole responsibility was to clean the women’s patron and staff washrooms on Fridays, Saturdays and Sundays.

16On November 6, 2002, Welts was hired as a part-time washroom attendant. His employment was subject to the same probationary period. Welts’ sole responsibility was to clean the men’s patron and staff washrooms on Fridays, Saturdays and Sundays.

17The duties of the washroom attendant were to provide general maintenance and cleaning of the washrooms, including mopping floors, wiping sinks and ensuring the washrooms were safe and clean.

18There was some dispute in the evidence as to whether the washrooms were cleaned every fifteen or every thirty minutes in 2002. The precise timing of the cleanings does not affect the findings in this decision.

19In 2002, the men’s patron washroom had five sinks, six urinals and five stalls. The women’s patron washroom had eight sinks and twenty stalls.

20On or about December 23, 2002, Welts was promoted without competition to a full-time housekeeping position. The full-time housekeeper was required to clean the entire Casino, including washing and waxing the floors, removing the garbage, vacuuming the carpet, cleaning the ashtrays, and cleaning the washrooms in non-peak periods when the washroom attendant was not employed or assisting the washroom attendant while on break or if he or she had to leave early. The Casino hired Welts because a man left the housekeeping department in December 2002. The Casino admits that Welts was hired because he is a man.

21During the period December 8 to 19, 2002, there were four housekeeping teams that provided cleaning services twenty-four hours a day, seven days a week. Team 1 had two men and three women, Team 2 had two men and four women, Team 3 had two men and two women and Team 4 had three men and three women. There were the following additional housekeeping staff during this period: one part-time male and one part-time female washroom attendant on Fridays, Saturdays and Sundays, and five women, some of whom were being accommodated for medical reasons, who supplemented the housekeeping teams on a variety of shifts throughout the week. The evidence indicated that the ideal staff complement for each team is two men and three to five women, although the Casino did, at times, operate with only one man on a team.

22After Welts was promoted to the position of housekeeper, the housekeeping staff changed for the period December 20, 2002 to January 2, 2003. Team 1 had three men and three women, Team 2 had one man (one man resigned during this period) and four women, Team 3 had three men (including one man on medical accommodation) and three women and Team 4 had two men and five women. In addition, there were two part-time female washroom attendants, one part-time male washroom attendant, and the same five women who supplemented the housekeeping teams on a variety of shifts throughout the week.

23When Welts was hired, he was placed on Team 2.

24During the period from November 6, 2002 to January 22, 2003, there were also six individuals on three month full-time contracts in the housekeeping department: four women and two men. Several of the contracts were extended beyond the three-month period and two female staff eventually received full-time housekeeping positions.

25The staffing in the housekeeping department was quite fluid. It was a common practice to move staff from a washroom attendant position to a housekeeping position.

26On May 9, 2003, Seguin took over the position of Nevada Seller at the Casino where she sold lottery tickets to patrons in the Casino. Seguin had more responsibility in this position in that she was required to balance and reconcile all monies and tickets at the end of each shift.

27On May 23, 2003, Seguin resigned her employment at the Casino. In her letter of resignation she claimed her resignation was due to a “breach of trust and conduct by Supervisors, Managers and Human Resources, who are employed at the Casino”.

28On August 20, 2003, Seguin filed her complaint with the Commission. This was the first time the Casino became aware of Seguin’s concern regarding the Casino hiring a man into the full-time housekeeper position in December 2002.

29Today, the Casino has dedicated washroom attendants five days per week, twenty-four hours per day. There are no washroom attendants for two days during the middle of the week. During this time, the washrooms are cleaned and maintained by the housekeeping staff.

30Lyndon Thomson was the Casino’s housekeeping supervisor in 2002. He testified that prior to placing Welts in the full-time housekeeping position, there was no consideration of moving male staff from the other teams onto Team 2, the team where Welts was placed.

31There was no evidence before the Tribunal that the Casino considered using contract employees to fill the vacancy on Team 2 in December 2002.

ANALYSIS

32The Casino admits that Welts was given the full-time housekeeping position because he is a man. By necessary implication, the Casino must be taken to concede that Seguin was not offered or, at the very least, not given the opportunity to apply for the position because she is a woman.

33The Casino argues that it has not discriminated against Seguin for two reasons: (a) there are strong policy reasons requiring same-gender cleaning of the washrooms and as such, there is no discrimination in a purposive or substantive sense; and (b) in the alternative, same-gender cleaning is a BFOR and any violation of the Code is therefore justified.

34In support of its first argument, the Casino relies on the requirement under the Building Code to maintain segregated washrooms, the obligation to maintain a safe environment for employees under the Occupational Health and Safety Act, the defence under section 20 of the Code to maintain segregated facilities on the ground of public decency, and the duty to maintain a workplace free from harassment under the Code. The Casino relies on the Supreme Court of Canada’s decision in Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 (“Law”) in support of its first argument.

35While the Casino raises many important policy considerations that must be considered in this case, in my view, it is attempting to locate these considerations at the wrong stage of the legal analysis, that being, the determination of whether a prima facie case has been established.

36The Casino’s argument essentially conflates the two distinct steps in the human rights analysis: the determination of whether a requirement is discriminatory and the justification of such a requirement. The logical result of such an approach is that discriminatory practices will not violate the Code as long as there are public policy reasons to support them thereby eliminating the duty on employers to accommodate employees subject to these practices. This contradicts both the statutory scheme of the Code and the common law that has developed around workplace requirements, most notably under the Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”).

37In my view, the Law analysis cannot be routinely applied in every human rights case where in doing so, the express statutory scheme of the Code is ignored. Although the courts have applied Law in some human rights cases, they have cautioned decision-makers to always be aware of the differences in the language of the Charter and various human rights codes (Ontario Secondary School Teachers’ Federation v. Upper Canada District School Board, 2005 CanLII 34365 (ON SCDC), [2005] O.J. No. 4057 (Div. Ct.) at para. 28).

38I agree that the public policy considerations put forward by the Casino are important. The difficulty is that they relate not to the housekeeping position as a whole, but to one task of the housekeeping position. It is critical to remember that the issue in this Complaint is not whether same-gender cleaning of the washrooms is discriminatory: it is whether the Casino discriminated against Seguin when it failed to consider her for the full-time housekeeping position because of her sex.

39There is no dispute on the facts of this case that Seguin was not considered for the full-time housekeeping position because she is a woman. This constitutes direct discrimination on the basis of sex. The question before me is whether hiring a man in the housekeeping position in December 2002 was a BFOR under section 24 of the Code reproduced below.

24(1) The right under section 5 to equal treatment with respect to employment is not infringed where,

(b) the discrimination in employment is for reasons of age, sex, record of offences or marital status if the age, sex, record of offences or marital status of the applicant is a reasonable and bona fide qualification because of the nature of employment;

24(2) The Commission, the Tribunal or a court shall not find that a qualification under clause (1)(b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

40In order to succeed in the section 24 defence, the Casino must establish that hiring a man into the housekeeping position in December 2002 was reasonable and bona fide.

41There is no evidence before the Tribunal that the Casino had a gender requirement regarding the composition of the housekeeping staff, other than the anecdotal evidence that the goal is to have two men on each team. There is, however, a clear requirement relating to one of the tasks of the housekeeping position that a person of the same gender must clean the washrooms. While I agree that the Casino can rely on the section 24 defence even where the requirement relates to only one task in a position, the requirement must be justified in the context of the housekeeping position as a whole.

42The Supreme Court of Canada in Meiorin set out a uniform approach for determining whether a prima facie discriminatory workplace rule or standard is justified. The employer must establish on a balance of probabilities that: (a) it adopted the standard for a purpose rationally connected to the function being performed, (b) it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose, and (c) the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose in the sense that the respondent cannot accommodate persons with the characteristics of the complainant without incurring undue hardship.

43At the first stage of the three-part test, the Tribunal must determine the general purpose the impugned standard was designed to achieve. In this case, the general purpose of requiring the housekeeper to be male was to ensure that a man was available to clean the men’s washrooms in order to respect the privacy of the male patrons and the safety of the female staff. The Tribunal finds that there is a rational connection between this purpose and one of the objective tasks of the housekeeping position, that being cleaning the men’s washrooms.

44At the second stage, the Tribunal must determine whether the employer adopted the standard with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the complainant. The Tribunal finds that the Casino had no intention of discriminating against Seguin and that it adopted the requirement that a man had to be hired in the housekeeping position in December 2002 in the honest and good faith belief that it was necessary in order to ensure same gender cleaning of the men’s washrooms.

45At the third and final stage of the test, the Tribunal must determine whether the impugned standard is reasonably necessary for the employer to accomplish its purpose. At this step, the employer must establish that it cannot accommodate the complainant without experiencing undue hardship. If the employer can accommodate individual differences without incurring hardship, the standard is not justified and it will be found to be discriminatory.

46The Supreme Court in Meiorin, relying on its earlier decision in Central Alberta Dairy Pool, 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489, held that when examining the issue of accommodation, courts and tribunals should look at the interchangeability of the workforce in order to determine whether there are different ways to perform the job, while still accomplishing the employer’s valid work-related purpose. The Court held further that when inquiring into the issue of accommodation, it may be helpful to first consider the procedure, if any, that was adopted by the employer to assess possible accommodation and secondly, to consider the substantive content of either a more accommodating standard or alternatively, the employer’s reasons for not offering such a standard. To facilitate the inquiry, the Court proposed that the following questions be considered:

(a) Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?

(b) If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?

(c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?

(d) Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?

(e) Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?

47The Supreme Court was very clear in Meiorin that employers are required to build “conceptions of equality” into workplace standards in order to ensure that they reflect all members of society. To the extent that a standard fails to “reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced” (at para. 68). In my view, this requires employers to take a step back when they have a workplace requirement that is on its face discriminatory and consider whether the requirement can be changed to reflect the diversity of its workforce.

48There is no evidence before the Tribunal that the Casino canvassed any alternatives before offering Welts the housekeeping job. Rather, when a male staff member left Team 2, the Casino simply replaced him with another man and never considered whether the task of same-gender cleaning of the washrooms could be accomplished in any other way.

49It is clear on the evidence before me that there were many alternatives available to the Casino to ensure same gender cleaning of the men’s washrooms without giving the full-time housekeeping position to a man. These alternatives included assigning male staff from the other teams to Team 2, hiring male washroom attendants to clean the men’s washrooms and hiring male contract staff to clean the men’s washrooms. The Casino considered none of these options. There is no evidence before me that any of these alternatives would have caused the Casino undue hardship. Indeed, some of these options simply required the Casino to reassign its existing housekeeping staff.

50I conclude that Seguin has established that she was discriminated against when the Casino hired a man into the housekeeping position in December 2002. The Casino has not shown that it was necessary to hire a man in order to maintain same gender cleaning of the washrooms at the Casino. As such, the Casino has failed to justify gender as a BFOR for the housekeeping position in December 2002.

REMEDY

51The Tribunal’s remedial powers are set out in section 41(1) below:

Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order,

(a) direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

General Damages

52The Divisional Court held in Ontario (Human Rights Commission) v. Shelter Corp., 2001 CanLII 28414 (ON SCDC), [2001] O.J. No. 297 at paras. 43-44 that there is an “intrinsic value” attached to the right to be free from discrimination, and that not only is there no ceiling on general damages awards, but that the awards should not be so low as to trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate.

53The following factors are generally considered in determining the quantum of general damages:

• Humiliation experienced by the complainant

• Hurt feelings experienced by the complainant

• A complainant’s loss of self respect

• A complainant’s loss of dignity

• A complainant’s loss of self esteem

• A complainant’s loss of confidence

• The experience of victimization

• Vulnerability of the complainant

• The seriousness, frequency and duration of the offensive treatment

(Sanford v. Koop, 2005 HRTO 53 at para. 35)

54Seguin testified that she was so upset by the Casino’s decision to place Welts into the full-time housekeeping position that she resigned her employment in May 2003, citing a breach of trust by the management of the Casino.

55Seguin also testified that she felt humiliated when other housekeepers questioned her as to why Welts had become full-time; however, she was unable to identify the individuals who questioned her.

56I am satisfied that the Casino’s failure to even consider Seguin for the full-time housekeeping position affected her self-respect, dignity, self-esteem and confidence. The impact of the Casino’s actions is evident by the fact that it caused Seguin to terminate her employment. In these circumstances, a meaningful award of general damages is appropriate in order to make Seguin whole from the loss of her right to be free from discrimination.

57The Casino argued that Seguin never complained internally: that the first time it became aware of the human rights issue was when it received the Complaint. Although not stated directly, the Casino implied that this should affect Seguin’s entitlement to damages.

58While I accept that employees have a duty to cooperate in the accommodation process (under the third step of the Meiorin test), there was no opportunity for Seguin to have any input into the hiring process or to be considered for the housekeeping position in December 2002. Her human rights were infringed when the Casino unilaterally gave Welts the housekeeping job simply because he was a man. It was at that point that her human rights were breached and her general damages flow from this infringement.

59In light of the foregoing, the Tribunal finds that $10,000 is an appropriate award for general damages.

Mental Anguish

60Section 41(1)(b) of the Code provides that the Tribunal may award damages of up to $10,000 for mental anguish, where such infringement has been engaged in wilfully or recklessly.

61The Casino did not violate Ms. Seguin’s rights in a wilful and reckless manner. The purpose of the male standard was not to infringe Ms. Seguin’s rights. Rather, it was done in the good faith belief that it was necessary to ensure same gender cleaning of the men’s washrooms in order to protect the privacy of its male patrons and the safety of its female staff.

62Even if it could be said that the Casino acted recklessly when it offered the full-time housekeeping job to Welts solely because of his gender, there is no evidence before me, medical or otherwise, to support the claim for mental anguish damages beyond the broad assertion of humiliation which has already been compensated for in the award of general damages.

63Accordingly, the Tribunal makes no award for mental anguish damages.

Special Damages

64The purpose of special damages under subsection 41(1)(b) of the Code is to put the Complainant in the position she would have been in had the discrimination not occurred. In this case, Seguin would have been given the opportunity to compete for the full-time housekeeping position had the discrimination not taken place.

65The test for assessing damages for lost opportunity was set out in Dantu v. North Vancouver District Fire Department (1986), 1986 CanLII 6503 (BC HRT), 8 C.H.R.R. D/3649, cited with approval by this Tribunal in McKinnon v. Ontario (Ministry of Correctional Services), [2007] O.H.R.T.D. No. 5. The party seeking damages must establish a reasonable possibility that they would have been hired. The greater the likelihood the party would have been hired, the higher the damage award.

66It is difficult to predict whether Seguin would have received the full-time housekeeping position over Welts in the event a competition was held. However, given the Casino’s evidence regarding the fluidity of movement from the washroom attendant position to the housekeeping position, the similarity in experience between Welts and Seguin, and the fact that Seguin was given more responsibility in early May 2003 when she assumed the position of Nevada Seller, I find that there was a fifty percent chance that Seguin would have been hired had she been considered for the full-time housekeeping position in December 2002.

67Accordingly, I am awarding Seguin fifty percent of her lost wages from December 23, 2002 to May 23, 2003 at the full-time housekeeping salary less the wages that she earned in the part-time washroom attendant position during this period.

Pre- and Post-Judgment Interest

68In order to make Seguin whole, it is appropriate to award pre- and post-judgment interest on all monetary amounts awarded herein. Pre-judgment interest on the general and special damages is to run from August 20, 2003, the date of the Complaint. Post-judgment interest is to run from the date of this Order. The rates for both shall be in accordance with section 127 of the Courts of Justice Act.

Public Interest Remedies

69There was no evidence before the Tribunal that the Casino has any anti-discrimination policies relating to its staff. For this reason, the Tribunal orders the Casino to develop an anti-discrimination policy for its workplace in accordance with subsection 41(1)(a) of the Code.

ORDER

70The Casino is ordered to pay Seguin the following amounts within 30 days of this Order:

(1) $10,000 as compensation for her loss of dignity resulting from the infringement of her rights under sections 5(1) and 9 of the Code

(2) Compensation for her lost pay calculated in accordance with paragraph 66 above

(3) Pre-judgment and post-judgment interest in accordance with section 127 of the Courts of Justice Act.

71Moreover, the Casino is ordered to develop an anti-discrimination policy for its workplace which addresses the hiring and promotion of staff, and that such policy is to be disseminated to its employees within three months of the date of this Order, with proof of the same provided to the Tribunal at that time.

72This panel of the Tribunal will remain seized with respect to any dispute regarding the implementation of this Order for a period of 12 months from the date of this decision.