Colin Adams v. Knoll North America Corp. and Cam Truong, 2009 HRTO 1381

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Colin Adams

Applicant

-and-

Knoll North America Corp. and Cam Truong

Respondents

case Resolution Conference DECISION

Adjudicator: Jennifer Scott

Date: September 2, 2009

Citation: 2009 HRTO 1381

Indexed as: Adams v. Knoll North America

APPEARANCES BY

Colin Adams, Applicant ) Glen Morrison, ) Representative

Knoll North America Corp. ) Robert Dunford, and Cam Truong, Respondents ) Counsel )

introduction

1This is an Application filed under s. 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant made a complaint to the Ontario Human Rights Commission on March 17, 2008 alleging discrimination in employment on the basis of race. On October 31, 2008, he exercised his right to abandon the complaint and make an Application to the Tribunal.

2Following a mediation, at which the matter did not resolve, the Case Resolution Conference (“CRC”) was held on June 23 and 24, 2009 and was conducted in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in an informal and highly expeditious manner. The following witnesses gave evidence: Colin Adams, the applicant; Moses Furic, a co-worker; Cam Truong, production supervisor; Greg Cole, midnight shift supervisor; Joe Valencia, department manager; Alan Goffenberg, vice president of operations and Ellen Blahitka, human resources manager.

3The hearing in this matter was bifurcated to deal with the issue of liability first. This CRC Decision deals solely with the issue of liability.

BACKGROUND

4Colin Adams identifies as Black and is from Ghana. From July 19, 1999 to March 3, 2008, he worked for the respondent Knoll North America Corp. (“Knoll” or the “employer”) in its Toronto factory manufacturing office furniture. At the time his employment ended, he worked as a machine operator.

5At the commencement of the CRC, the parties agreed that the substance of the Application alleged discrimination on the basis of race even though the applicant had checked off “disability” in his human rights complaint. Both parties came to the CRC prepared to argue and respond to a claim of racial discrimination.

6The issue before the Tribunal is whether Knoll’s requirement that the applicant undertake anger management counselling constitutes differential treatment on the basis of race. Put differently, was the employer’s requirement that the applicant receive anger management counselling influenced by a discriminatory stereotype concerning Black men?

THE EVENTS OF FEBRUARY 12, 2008: CONFLICTING TESTIMONY

7This case requires me to resolve issues of credibility concerning the events of the evening of February 12 and the morning of February 13, 2008. Three witnesses testified about these events: Colin Adams, his supervisor Cam Truong and another supervisor, Greg Cole.

i) Colin Adams

8The applicant testified that he worked the 10:30 p.m. to 6:45 a.m. shift on February 12, 2008. At approximately 3:27 a.m. on February 13, he called his supervisor, Cam Truong, over to his work station. He complained to Mr. Truong that the job he did one week earlier was still sitting by his work station without a work order. Mr. Truong said he didn’t know why it was still there and walked away. Mr. Truong then returned to the applicant’s work station and said “we all make mistakes”. The applicant replied that he didn’t make a mistake. Mr. Truong then turned to him and said, with a hiss, “do you have a problem?”. The applicant told Mr. Truong to get out of his face.

9Mr. Truong returned again to the applicant’s work station and asked him to come to his office. The applicant advised Mr. Truong that he would not go to his office alone and asked him to get three workers from the floor to go with him. He then went on his lunch break.

10While in the lunchroom, the applicant was approached by a security guard. The guard did not know who he was and asked generally for “Colin”. The applicant turned to the security guard and asked what was wrong. The security guard responded by saying “you know” and the applicant said he did not know. The security guard walked away, but returned shortly thereafter and said “we can do this the easy way or the hard way”. The applicant asked the guard whether he was threatening him. The security guard left. Five minutes before his lunch break was over, the applicant returned to his work station.

11When he arrived at his work station, he was met by Cam Truong and Greg Cole. The applicant told Mr. Cole there was no work order. Mr. Cole turned to Mr. Truong and asked what he was going to do. Mr. Truong replied “send him home”. The applicant went home.

ii) Cam Truong

12Mr. Truong testified that a few minutes before 3:00 a.m., the applicant stopped him and said he wanted to see him. A few minutes later, he went to the applicant’s work station. The applicant showed him the material beside his machine with a note on top of the material. Mr. Truong said that he had written the note which said “we have to re-work the material”. The applicant asked why Mr. Truong wrote the word “we” when he did not make a mistake. He said he did not make the mistake and he was not going to re-work the material. Mr. Truong said the applicant’s voice was a little loud when he was speaking to him.

13A few minutes later, the applicant motioned for Mr. Truong to come back to his work station. Mr. Truong asked him what was wrong. The applicant showed Mr. Truong different material that had no work order. Mr. Truong asked him to do the work at his station that had a work order. He stated that when that work was completed, the applicant beckoned Mr. Truong over again. The applicant asked Mr. Truong why he said “we” regarding the material that had to be re-worked. At that point, the applicant was raising his voice and yelling. Mr. Truong asked him to calm down. The applicant said to Mr. Truong “who are you and why do I have to listen to you”. Mr. Truong asked him to go to his office. Mr. Truong then went to his office and called security.

14The applicant went to Mr. Truong’s office. He leaned against the doorway to the office and moved the zipper on his pants up and down several times. Mr. Truong told the applicant that he did not feel respected by him and asked him to stop. The applicant turned around and walked away.

15The security guard arrived at Mr. Truong’s office. Mr. Truong asked security to tell the applicant to leave the building. Mr. Truong then went to get Greg Cole and together, they went to the applicant’s work station.

16The applicant returned to his work station and found Mr. Truong and Mr. Cole at his station. Mr. Truong testified that he felt the applicant had lost control. He had never seen the applicant angry before, had never heard him raise his voice and had never seen that kind of body language (undoing his zipper) before. He stated he felt disrespected and threatened by his conduct.

17The applicant denied Mr. Truong’s version of events. In particular, he denied going to Mr. Truong’s office, denied pulling his zipper up and down and denied that Mr. Truong left the note on the material. Mr. Adams said he left a note on the material stating “there is no work order for this job”. He denied that he was angry. He testified that when he told Mr. Truong that he did not make the mistake, Mr. Truong said he didn’t understand why the company was wasting its time with him. This was in reference to the fact that the applicant received accommodation in the workplace. It was only in response to this comment that the applicant asked Mr. Truong if he had a problem.

iii) Greg Cole

18Mr. Cole testified that Mr. Truong advised him that he had an issue with Colin Adams that had escalated and he had asked security to tell him to leave. Mr. Truong showed Mr. Cole a note and some material by the applicant’s work station. The applicant approached them at the work station. He was speaking loudly and saying “I am not going to do this. He is wrong”. Mr. Cole asked the applicant to stop talking. He did not stop and began to speak louder and louder.

19Mr. Cole asked Mr. Truong if he was sending Mr. Adams home. Mr. Truong said he was, and Mr. Cole turned to the applicant and told him to go home. The applicant went home.

20Mr. Cole testified that he and the applicant are friends. He said he had never seen Mr. Adams behave this way before. He testified that the applicant had never before raised his voice in anger. He said that Mr. Adams was not violent and that he had never seen him attack anyone.

iv) Factual Findings

21For the reasons that follow, I accept the evidence of Mr. Truong regarding the events that transpired on February 12, 2008. There are several factors that cause me to conclude that the essential aspects of his version of events are accurate and the applicant’s evidence is not accurate.

22Mr. Truong and Mr. Cole confirmed that the applicant was visibly angry at Mr. Truong. That anger related to the fact that Mr. Truong asked him to fix someone else’s mistake. Whether the mistake was not having a work order or whether it related to having to re-work material, it doesn’t matter. Both witnesses confirm the applicant was extremely angry and was speaking in a raised voice. Neither Mr. Truong nor Mr. Cole had ever seen the applicant behave this way before.

23The applicant’s assertion that he was not angry on February 12, 2008 is not credible. There is no question he took exception to his supervisor’s request that he fix someone else’s mistake. His reaction was sufficiently unusual that his supervisor requested a meeting in his office. The applicant realised the situation had escalated, and he demanded that three co-workers attend the meeting with him. Mr. Truong then contacted security prior to the applicant coming to his office and obtained the assistance of a fellow supervisor. There is no dispute between the parties about these facts. For the applicant to now suggest that he was not angry is not credible. I find that the applicant was angry on February 12, 2008 and that his anger was unprecedented.

24The applicant denies that he pulled his pants zipper up and down as he was leaning against the door of Mr. Truong’s office. I do not accept his denial. There would be no reason for Mr. Truong to fabricate this evidence. Mr. Truong’s evidence about the events of February 12, 2008 was supported in large part by Mr. Cole, who was a friend of the applicant. Mr. Truong testified that he felt disrespected by this gesture. Mr. Truong did not attempt to over-state his evidence about this incident. I find that his evidence was balanced and fair and is more credible than the applicant’s outright denial.

EMPLOYER’S RESPONSE TO THE FEBRUARY 12, 2008 INCIDENT

25The employer undertook an investigation of the February 12, 2008 incident. I have not relied on the notes of the investigation, including the witness statements, because the investigator, Monika Bedi, did not testify at the hearing and as such, was not available to be cross examined. Instead, I have relied on the direct evidence of the witnesses that were present during the incident.

26On February 20, 2008, the employer issued a three-day written suspension to the applicant for a violation of three rules in its Rules of Conduct: (a) insubordination, including failure to carry out definite instructions or assignments; (b) fighting, assault or other disorderly conduct such as the use of abusive or threatening language; and (c) failure to cooperate with plant protection personnel on company premises or to comply with plant security procedures.

27The applicant does not dispute the suspension. He breached the three Rules of Conduct when he: (a) failed to follow Mr. Truong’s instructions to complete work on February 12, 2008; (b) engaged in disorderly conduct by becoming angry and disrespectful; and (c) failed to comply with plant security when he was asked to leave the workplace.

28On February 20, 2008, the employer, by separate letter, advised Mr. Adams that it had serious concerns about his inappropriate behaviour in the workplace. The employer told the applicant that it wanted him to return to work but needed a commitment from him that he would seek help controlling his anger. The employer said it was willing to allow the applicant to return to work as long as he agreed to seek counselling through the company’s Employee Assistance Plan (“EAP”) and that there were no further acts of inappropriate behaviour. The employer asked him to accept these conditions by signing the February 20, 2008 letter. Attached to this letter was the Referral Procedure for the EAP and an authorization to release information. The attachment was a standardized form provided by the EAP provider.

29The EAP form stated that the provider had been asked by the employer to provide counselling and to keep the employer informed of the employee’s progress. It authorized the EAP firm to release the following confidential information to the employer: (a) confirmation that the first appointment was scheduled; (b) confirmation that the first appointment was attended; (c) confirmation of continuation in counselling; (d) confirmation of completion of counselling; and (e) confirmation of specific counselling recommendations and the names of any outside resources referred to, as appropriate.

30On February 25, 2008, Ms. Bedi and Mr. Goffenberg met with the applicant. The applicant advised them that he would not sign the February 20, 2008 letter.

31On February 26, 2008, the employer wrote to the applicant advising him that it required his commitment that he would seek help in controlling his anger. The employer asked him to reconsider his decision and hoped that he would make the decision to seek counselling and return to work. The employer advised that it required his written commitment that he would seek counselling through its EAP and that this was a condition of his continued employment at Knoll. The letter contained the following paragraph:

Our Employee Assistance Plan (EAP) is a completely confidential counselling service available to you at no charge. As explained, the only information that our EAP provider will share with us, is that you are attending counselling sessions on a continuing basis and not the nature of anything discussed during those sessions.

32The employer advised the applicant that if it did not receive his signed agreement to this condition of employment by 10:00 a.m. on March 3, 2008, it would assume that he had resigned from his position and would process his termination accordingly.

33On March 3, 2008, the applicant advised Ellen Blahitka, Knoll’s human resources manager, that his doctor had confirmed that he did not have an anger management problem. Mr. Adams did not provide Knoll with anything in writing from his doctor.

34The applicant told Ms. Blahitka that he would not sign the agreement. Ms. Blahitka testified before the Tribunal that she told the applicant that they would use the EAP to assess whether he had an anger management problem and if he didn’t need further treatment, the EAP provider would let the employer know and that would be the end of it.

35On March 3, 2008, Ms. Blahitka wrote the applicant confirming that in order to return to the workplace, the employer required his written commitment that he would seek counselling and commit no further acts of inappropriate behaviour in the workplace. In the letter, Ms. Blahitka referred to the employer’s letters of February 20 and February 26, and their conversations on February 21 and the morning of March 3, 2008.

36There was no indication in Ms. Blahitka’s letter of March 3, 2008 that the referral to the EAP was for the purposes of an assessment. This letter was written after the applicant spoke with Ms. Blahitka on March 3, 2008 and as such, Ms. Blahitka had the opportunity to clarify what was intended by the EAP referral in this letter.

37Mr. Goffenberg testified that the applicant’s employment was terminated because he refused to attend anger management counselling. This is consistent with all of the employer’s written correspondence to the applicant on February 20, February 26 and March 3, 2008. I do not accept Ms. Blahitka’s evidence that the referral to the EAP was for an assessment and that anger management counselling would only occur if deemed necessary by the assessor. I find that the applicant was required to take anger management counselling and his refusal to do so resulted in the termination of his employment.

38Ms. Blahitka testified that Knoll had a zero tolerance policy for physical violence and the presence of firearms in the workplace. She testified that a breach of this policy resulted in the automatic termination of the employee. This policy was put into effect in 2004 because of a murder/suicide that occurred in one of Knoll’s workplaces in the United States.

39Ms. Blahitka testified a referral to EAP is preventative in nature in that its aim is to prevent a violent incident in the workplace that could result in an employee losing their job. In other words, the EAP referral is to prevent the zero tolerance policy from coming into effect. Ms. Blahitka stated they do not want their employees to lose their jobs and they want a safe workplace. There is no written policy concerning the use of the EAP program.

40Ms. Blahitka stated that in the past five years, 12 people have been sent to the EAP, ten of whom were sent for anger management. The race of the ten individuals sent to anger management is as follows: five Black men, two Asian men, one Asian woman, one Caucasian woman and one Caucasian man. Knoll has a workforce of 1,100 employees.

SIMILAR FACT EVIDENCE

41The applicant called a co-worker, Mr. Furic, to testify at this proceeding. Mr. Furic is also Black. Mr. Furic testified that he had a disagreement with a co-worker at work regarding the use of a company locker in late October 2008. The dispute escalated and his co-worker wanted Mr. Furic to go outside to fight him. Mr. Furic’s team lead intervened. Mr. Goffenberg testified that he believed the dispute would have become physical had Mr. Furic’s supervisor not intervened. The incident was investigated, and Mr. Furic was required to attend anger management counselling as a condition of his continued employment. Mr. Furic refused, and his employment was terminated in November 2008.

42There is little that can be drawn from the evidence of Mr. Furic without knowing his employment disciplinary history. On the basis of the evidence before me, I am unable to conclude that Mr. Furic’s circumstances were so similar to the applicant’s that they can be relied upon in this case.

WAS RACE A FACTOR IN THE DECISION TO REQUIRE COLIN ADAMS TO UNDERTAKE ANGER MANAGEMENT COUNSELLING

43The issue before the Tribunal is whether Knoll’s requirement that Mr. Adams undertake anger management counselling as a condition of his employment constituted differential treatment on the basis of race.

44It is a fundamental principle of human rights law that, if a prohibited ground of discrimination is a factor in a decision or action taken, there is prima facie discrimination. I agree with the following summary of the applicable principles set out by the British Columbia Human Rights Tribunal in Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52. C.H.R.R. D/430 at para. 482:

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent’s actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent’s discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

45As this Tribunal noted in Sinclair v. City of London, 2008 HRTO 48, race plays a very subtle role in our society. It can influence many social interactions without the knowledge or the intention of those involved. The effects of anti-Black racism are well recognized in Canadian law and expert evidence, while helpful, is not necessary for them to be considered by the Tribunal.

46One of the most significant effects of anti-Black racism is the over-monitoring of Black men because of certain attributes that are prescribed to them. As the Tribunal stated in Sinclair “[r]acialization affects Black men in particular, often without the conscious involvement of those making decisions, through stereotypes of them as physical, violent, and more likely to be criminal” (at para. 17).

47We have come to understand that the application of racial stereotypes that Black men are prone to violence and criminal behaviour can lead to a greater monitoring and scrutiny of their behaviour. This heightened scrutiny may involve an over-reaction to their behaviour when involved in situations that pose challenges for those in authority and this too, can form part of the differential treatment they experience (Sinclair at para. 53). The scrutiny itself may be unintentional. The impact of being more highly scrutinized must be examined from the perspective of the racialized person and not from the perspective of those who do not experience it.

48Ms. Blahitka testified that Knoll required the applicant to obtain anger management counselling in order to prevent a violent incident from occurring in the workplace. The issue before me is whether Knoll’s linking of violence and anger was influenced by the belief that Black men have a propensity towards violence and whether this belief exposed the applicant to greater scrutiny. If the applicant establishes this on a balance of probabilities, a prima facie case of discrimination has been established.

49I have found that the applicant was visibly angry the morning of February 13, 2008. He was particularly angry at his supervisor for attributing responsibility for someone else’s mistake to him. The applicant showed his anger and his disrespect to his supervisor. The fact that he was angry on this one occasion did not mean he had a propensity towards violence. The applicant had no history of violence. He had never engaged in threatening behaviour in the workplace – verbal or physical – in almost nine years of employment. The only potentially threatening behaviour was when he pulled his pants zipper up and down. I find that this gesture was rude and disrespectful, but was insufficient on its own to establish a propensity towards violence.

50The applicant’s conduct on February 12, 2008, when viewed collectively, did not establish a propensity towards violence. It was unprecedented and, on that basis alone, was disconcerting to Knoll. It was open to Knoll to ask for an assessment from the applicant’s doctor as to whether he had an anger management problem or even to refer the applicant to the EAP for an assessment. However, to require the applicant to undergo anger management counselling as a condition of his continued employment was an over-reaction in light of his employment history, especially when one considers that he had served a three-day suspension for his misconduct. This finding is supported by the fact that in the last five years, only 10 out of 1,100 employees were required to attend anger management counselling. These statistics show that anger management counselling is rarely required of Knoll employees.

51I therefore find on a balance of probabilities that Knoll’s conclusion that the applicant could potentially become violent in the workplace, based solely on the isolated incident of February 12, 2008, was influenced by the discriminatory stereotype that Black men have a propensity towards violence. I find further that Knoll subjected the applicant to a heightened degree of scrutiny by requiring him to attend anger management counselling as a condition of his continued employment. In these circumstances, Knoll contravened section 5 of the Code.

NEXT STEPS

52I have found that Knoll violated the Code when it made anger management counselling a condition of Mr. Adams’ continued employment. As a result of my finding, I will need to hear evidence from the parties as to the appropriate remedy. Accordingly, I am requiring the parties to file materials regarding remedy with the Tribunal in accordance with the following schedule:

a. Within 14 days of the date of this CRC Decision, the applicant shall serve on Knoll and file with the Tribunal a statement of the specific remedies that are being sought and the evidence to support those remedies. The applicant must produce all documentation in support of his attempts to mitigate his damages;

b. Within 21 days of the date of this CRC Decision, Knoll shall serve on the applicant and file with the Tribunal its response to the applicant’s material on remedy; and

c. Within 28 days of the date of this CRC Decision, the applicant shall file any materials in reply.

53The parties should advise the Tribunal within 30 days of this CRC decision whether they believe an oral hearing is required to deal with remedy and if so, why.