Saadi v. Audmax, 2009 HRTO 1627

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Seema Saadi

Applicant

-and-

Audmax Inc. and Maxcine Telfer

Respondents

DECISION

Adjudicator: Faisal Bhabha

Date: October 7, 2009

Citation: 2009 HRTO 1627

Indexed as: Saadi v. Audmax

APPEARANCES

Seema Saadi, Applicant ) Jo-Ann Seamon, Counsel

Audmax Inc. and ) Maxcine Telfer, Representative

Maxcine Telfer, Respondents ) and on her own behalf

INTRODUCTION

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 17, 2008, alleging discrimination and harassment in employment on the grounds of race, colour, ancestry, place of origin, ethnic origin, disability, creed and sex. At the opening of the hearing, the applicant indicated that she would not be pursuing the allegation of disability discrimination.

2The applicant, Seema Saadi, was employed as an intake settlement worker by the corporate respondent, Audmax Inc., and worked under the supervision of its owner, the personal respondent, Maxcine Telfer. Between May and June 2008, the applicant alleges she experienced numerous incidents of discrimination and harassment, culminating in her termination on June 3, 2008. The respondents filed a Response on November 18, 2008, denying the allegations of discrimination and harassment. The respondents allege that the applicant was an untrustworthy and disrespectful employee who was terminated for just cause.

3While the applicant complied with her pre-hearing disclosure obligations under the Rules, the respondents, who were unrepresented through most, though not all, of this process, failed to disclose all arguably relevant documents on time. The applicant sought production of documents by way of a Request for Order During Proceedings (“RFOP”), filed on April 30, 2009. On May 4, 2009, the applicant withdrew her RFOP after receiving the respondents’ disclosure pursuant to Rule 16.1. There remained disputes about deficiencies in the respondents’ disclosure and the sufficiency of their particulars. Specifically, the applicant sought additional production and particulars in respect of performance-related allegations against her.

4On June 18, 2009, the applicant filed a RFOP making a number of requests, including that the respondents be ordered to produce additional arguably relevant documents, particularize a number of their allegations, and provide witness statements for their witnesses. The applicant also requested that Margaret Andoseh, who was originally named as a personal respondent, be removed.

5In an Interim Decision dated July 10, 2009, 2009 HRTO 1022, I found that the respondents were in breach of the Rules and were well beyond their deadlines for disclosing documents and witness statements. I ordered them to comply immediately, and cautioned them that failure to comply could result in their being prevented from admitting previously undisclosed evidence at hearing. I also granted the applicant’s request to remove Ms. Andoseh as a personal respondent. Accordingly, she is no longer named in the style of cause.

6This procedural history complicated the hearing, as the respondents attempted to admit into evidence numerous documents that had not previously been disclosed, and to rely on allegations that had not previously been particularized either sufficiently or at all. I solicited submissions from the applicant on prejudice and any other factors to consider, and made orders as necessary. Not all of these orders are cited in this Decision, though I do, where appropriate, identify where an issue arose as to admissibility and explain my reasons for my orders. The Tribunal’s Rules of Procedure empower the Tribunal to be flexible in applying the Rules in a manner which is fair, just and expeditious.

DECISION

7The respondents, Audmax Inc. and Maxcine Telfer, violated Seema Saadi’s right to equal treatment in employment under section 5(1) of the Code by discriminating against her on the basis of ancestry, ethnic origin, creed and sex. This discrimination occurred indirectly through the enforcement of office dress code and food policies, in the respondents’ disciplinary action and failure to accommodate the applicant’s religious attire, and in the termination of her employment.

PROCEEDINGS

8The hearing took place over four days: July 21-24, 2009. The applicant’s case consisted of two witnesses: Ms. Saadi and Akri Jendoubi, a former employee of Audmax. The respondents’ case consisted of oral testimony by Ishita Ghose, a current administrator with Audmax; Gary Chung, a former employee; and Aundre Green, Ms. Telfer’s son and a volunteer with Audmax. Ms. Telfer also testified on her own behalf. She attempted to introduce into evidence an unsworn letter from Paul Barnett, who was unable to attend the hearing due to being abroad. I refused to accept the previously undisclosed letter into evidence as it would have been prejudicial to the applicant, unreliable and of limited probative value.

FACTS

9There is little dispute about the general factual history that gave rise to this Application, though deep divisions separate the parties on key incidents and the legal implications flowing from those events. Because the allegations and my findings of liability are heavily dependent on disputed facts, in the Analysis section below I provide a more thorough treatment of the facts, as well as my credibility findings necessary to the determination of the issues.

10The applicant self-identifies as a Bengali-Canadian, Muslim woman. She is legally blind. She worked for the respondent company from April 21, 2008, to June 3, 2008, as a bilingual intake worker for its Immigration Settlement Assistance Program (“ISAP”), a federally-funded project designed to assist newcomer women find work in Canada.

11Audmax is a corporation that receives public funding to administer programs to assist diverse ethnic and religious populations. Maxcine Telfer is the Chief Executive Officer of Audmax, and is an experienced consultant in research, training and policy. Audmax shares office space with Paul Barnett and Associates, a private consulting company that has no formal relationship with Audmax. Ms. Telfer often worked closely with Mr. Barnett and consulted with him about Audmax business.

12The applicant originally applied for a settlement worker position with Audmax in February 2008. She was not called for an interview, but Ms. Telfer retained her resume on file and invited her for an interview when the bilingual intake worker position became available in April 2008, which resulted in the applicant being offered the position.

13The workplace was diverse in its ethnic and religious composition. There were two other Muslim women working on the ISAP project who were both, like the applicant, bilingual in French and English. Neither of the other two Muslim women wore a traditional hijab (headscarf worn for religious purposes), but one of the women did usually cover her hair with a bandana-style scarf. Many of the participants in the ISAP program were Muslim women, and many were, as is the applicant, of South Asian origin.

14The evidence establishes that discord in the office preceded the applicant’s hire. Tensions and distrust lingered following a workplace dispute in March 2008 in which one of the Muslim women believed she had overheard a colleague making disparaging comments about her appearance. Staff on both sides of the conflict felt that Ms. Telfer had not effectively managed the situation. Ms. Telfer testified that she believed strongly in people working out their issues, and hoped, despite indications to the contrary, that a collegial spirit would prevail in the office. In April 2008, when the applicant began her employment, she sensed that she had joined a tense and divided workplace.

15The applicant testified that conditions in the office deteriorated following her hire. She felt shaken from comments made during her interview and in her first few weeks, which touched on topics of race, culture and religion and which made her uncomfortable. However, this was her first real office job and she testified she wanted to make a good impression. She kept quiet and tried to fit into the new environment. She soon began to feel that she was being unfairly targeted. She was reprimanded for violations of office food and dress code policies, as well as being affected by a new language policy banning the use of French amongst bilingual staff.

16The applicant stated that with each measure adopted by management, she became increasingly uncomfortable with what she believed to be a pattern of discriminatory treatment based on an intersection of her race, ancestry, ethnic origin, creed (religion) and sex. Through the enforcement of a restrictive microwave policy, she felt her spicy food was the target; the ban on French seemed directed at the three bilingual Muslim women; and being told that her attire was not professional enough sounded like she was expected to wear short skirts, heels and sleeveless blouses, rather than the long, loose clothing and hijab that she wore as an observant Muslim woman.

17The applicant testified that in mid-May 2008, when the two other Muslim women in the office resigned, her sense of vulnerability reached a heightened level. She feared that it was just a matter of time before she would be let go. On May 16, 2008, she was called into a meeting with Ms. Telfer and Mr. Barnett, and was reprimanded for a number of violations of the office dress code. She felt the watchful eye of the employer intensify its gaze and believed that no matter how well she performed in her job, she would be perceived as a fifth column simply because she, like the two employees who had resigned, was Muslim.

18Ms. Telfer was indeed suspicious of the applicant and felt she had good reason to be. The applicant had been friendly with the two staff members who quit, and after their departure she began acting suspiciously around the office. According to Ms. Telfer, the applicant’s refusal to comply with dress code and microwave policies, her use of her mobile phone while at work, her odd movements about the office, unexplained intrusions into colleagues’ desks, and missing files caused the respondents to grow increasingly concerned about the applicant’s trustworthiness and professionalism.

19On May 26, 2008, Ms. Telfer advised the applicant of a new procedure for accessing client files. The applicant was directed to obtain authorization from Ms. Telfer or the program manager, Margaret Andoseh, prior to having access to any client file. The applicant testified that prior to this she had direct access to client files, and believed the new procedure was a heightened security measure imposed on her, in the aftermath of the resignation of the other two Muslim women, for discriminatory purposes.

20Also on May 26, 2008, Gary Chung, a colleague who often worked late at the office, phoned the applicant in the evening and advised her that Ms. Telfer’s son, Aundre, had gone through the computers at work. The applicant testified that Mr. Chung warned her to be careful.

21On May 27, 2008, the applicant was called into a disciplinary meeting during which Ms. Telfer spoke with her about computer use, microwaving food, the dress code, file handling, and professional ethics. The applicant was reminded that she remained on probation under her contract and was expected to improve.

22By June 3, 2008, the respondents believed they had discovered enough evidence of unprofessional and disloyal conduct by the applicant to terminate her. While Audmax could have terminated the applicant without cause, Ms. Telfer decided there was a sufficient basis to terminate her for cause. The applicant was called into a meeting and told that she was being terminated because she was not an organizational fit. No further reasons were given.

23The applicant believed she was terminated for discriminatory reasons: she felt her Muslim identity was the reason she was deemed not to be a “fit”. She also felt that she was being discriminated on the basis of her association with the two other Muslim women who had unhappy endings at Audmax. She felt that her future at Audmax was sealed by virtue of who she is and what she represented, rather than by how she performed on the job.

ISSUES

24The issues for me to determine are:

(a) Was the applicant subjected to discrimination and harassment on the basis of her sex, creed, ethnic origin, place of origin, ancestry and race during her employment with the corporate respondent?

(b) Did the respondents accommodate the applicant’s Code-related needs up to the point of undue hardship?

(c) Was the applicant’s termination discriminatory?

(d) What damages result from any breaches of the Code?

ANALYSIS

25The Code provides as follows:

5. (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, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

26While the applicant’s period of employment covered only six weeks, she alleged discrimination on many fronts requiring an analysis of the facts as they relate to each allegation, measured against the applicable legal standards. To organize my findings, I will deal with each allegation separately, indicating my conclusion and the reasons for reaching each conclusion in the light of the relevant facts and the law.

Place of origin comments

27Applicant’s counsel argued that one of the contributing factors to the poisoned workplace and harassment were comments made by Ms. Telfer about the applicant’s, and other individuals’, place of origin. The applicant pointed me to the Ontario Human Rights Commission Policy on Racial Discrimination to support the proposition that references to place of origin can act as a proxy for racial discrimination. She relied on a number of instances of place of origin comments in the workplace to argue that there was a discriminatory pattern of drawing unnecessary attention to, and deriving conclusions from, individuals’ country of origin or ethnic background.

28While references to the place of origin or ethnic origin may serve as a proxy for racial or ethnic discrimination, not all comments about race or ethnicity will necessarily amount to discrimination or create a poisoned work environment. In diverse workplaces, it is important for employers to set an appropriate tone and refrain from making or tolerating comments that amount to discrimination.

29I accept the applicant’s evidence that some discussion occurred during the job interview about her place of origin. The respondent asked the applicant if she was born in Canada. The applicant testified that she did not have a problem with the question, and confirmed in the interview that she was Canadian-born. In the context of an organization engaged in providing services to newcomers and whose staff consisted of many individuals, including Ms. Telfer herself, who were not born in Canada, I do not find that the discussion was irrelevant to the job or to the workplace, or that it had any discriminatory effect on the applicant, who described the conversation as “friendly” and “welcoming”.

30The applicant also alleged that Ms. Telfer made a comment to the effect that she had heard women in Bangladesh are treated “like flesh”. I am satisfied on a balance of probabilities that the comment was not made during the job interview. The applicant described it as arising during an “informal, chatty conversation” some time later in her employment, while Ms. Telfer gave contradictory evidence, first stating that it occurred in response to a question the applicant posed during the interview, then on cross-examination stating that it did not occur during the interview.

31The comment must be examined in its context. The applicant and Ms. Telfer were having a friendly conversation in the workplace during which the applicant disclosed that her parents were from Bangladesh. Ms. Telfer responded that she once met a woman who told her that women in Bangladesh are treated “like flesh”. The topic, being the status of women in Bangladesh, was not unrelated to the work of the company and the comment appears to have constituted an attempt on Ms. Telfer’s part to better understand the social conditions facing Bangladeshi women, many of whom received services from Audmax as part of its project to empower newcomer women. The applicant alleged that the comment made her feel that Bangladeshi women were being disparaged. She testified that she asked Ms. Telfer for clarification as to what was meant by the comment, to which Ms. Telfer replied that she did not know what the woman who had made the observation meant by it.

32While the personal respondent may have demonstrated a lack of sensitivity in this casual workplace conversation, which had some unsettling effect on the applicant, I do not find that the comment was a discriminatory act in itself when viewed in the circumstances.

33The applicant also pointed to a comment the personal respondent made in relation to workplace security as further evidence of discriminatory place of origin references directed at the applicant in particular, and the Muslim staff in general. The comment arose in the context of a request by Ms. Telfer that staff be careful about their use of personal email in the office. She relayed to staff a story she had heard in the news about a person “from Iraq or Iran” who had been apprehended by authorities as a result of a personal email she had sent at work. The applicant testified that she felt this comment was directed at her in particular, and at the Muslims in the office, for the purpose of frightening them. She testified that in a climate of Islamophobia, a discriminatory association was being implied between Muslims, “otherness” and national security.

34I find that there was no evidence that Ms. Telfer was casting or confirming suspicions about Iraqis, Iranians, or Muslims in general. She was relaying the details of a story which she believed to be true that seemed to suggest that the authorities monitor personal emails. Her message was for all employees to be careful and I find the comment was not discriminatory.

35Finally, the applicant alleges that Ms. Telfer identified Gary Chung as “our black Chinese” when introducing them on the applicant’s first day of work. Ms. Telfer and Mr. Chung denied the comment in their testimony. I find the applicant to be more credible and I accept that it is likely, on a balance of probabilities, that the reference to Mr. Chung’s ethnic origin was made. However, reference to a person’s ethnic origin does not on its face amount to a breach of the Code. In a diverse and racialized workplace, the discussion of ethnic origin may be expected. There was no evidence to suggest Mr. Chung was offended or that the comment created a disadvantage by perpetuating prejudice or stereotyping: see Tranchemontagne v. Ontario, 2009 CanLII 18295 (ON SCDC), [2009] O.J. No. 1613 (Div. Ct.) . I do not find the comment to be a breach of the Code in the circumstances.

Use of French

36I accept Ms. Telfer’s evidence that in response to an office conflict that occurred in March 2008, prior to the applicant’s hire, Ms. Telfer instituted a policy of English only in the workplace except when speaking with Francophone clients. I accept that her intent was to reduce the level of distrust, promote inclusiveness and communication, and restore a collegial office environment.

37The two French speakers, like the applicant, were both Muslim and the conflict had arisen out of a perceived comment about one of them, allegedly made behind her back but overheard, regarding her headscarf. Two of the key witnesses failed to testify so I am unable -- and it is unnecessary for me -- to make a finding as to what in fact happened with respect to that conflict.

38What is clear is that the measures adopted to address the conflict, including instituting the English-only policy, achieved the opposite effect of their intent, heightening distrust and worsening staff relations. Ms. Telfer’s own witness, Ms. Ghose, whose testimony was virtually identical to Ms. Telfer’s in all other material respects, testified that she felt the workplace conflict was not appropriately dealt with and that the environment became increasingly toxic from March 2008 onwards.

39Language is not a protected ground in the Code. It can at times be used as a proxy for race, ethnicity or place of origin based discrimination: see OHRC Policy on Racial Discrimination. French is not the applicant’s first language nor is it a language she speaks regularly or at a very high level of proficiency. As much as a manager’s failure to adequately address workplace conflict can create the conditions for discrimination, I am not able to find that the ban on the use of French in the workplace in this case constituted a proxy for racial discrimination against the applicant.

Microwave policy

40The applicant alleged that the office microwave policy had an adverse discriminatory effect on her on the basis of race, ethnic origin, ancestry and place of origin. Specifically, she argued that the policy, which allowed the heating of some foods, effectively operated as a ban on heating foods with an ethnically identifiable odour, without providing the opportunity to be accommodated. The applicant was held in violation of the policy on at least two occasions.

41There are three aspects of this policy for me to consider. First, there were two versions of a written policy admitted into evidence. Secondly, there was the policy as articulated by Ms. Telfer in the office in communications with staff, about which there is conflicting oral evidence. Finally, there is the issue of the interpretation and enforcement of the policy. Any rule or standard can be applied in a discriminatory manner if certain individuals are singled out for enforcement on the basis of a Code-protected ground. The applicant argued that she was singled out for discriminatory enforcement on the basis of an intersection of her race, ancestry, ethnic origin and place of origin.

42The written policy, dated September 18, 2001, titled “Health and Safety Concerns” deals with environmental sensitivity in the office. It asks employees to:

Please refrain from or strictly limit the use of scented deodorants, perfumes, colognes, shampoos.

It goes on to state:

Due to food allergies and odour from some food, please refrain from or strictly limit the use of the Microwave [sic] for foods that present same. The most commonly reported of these types of reactions have occurred as a result of seafood-allergic people inhaling odors [sic] from cooking or reheating certain foods. [emphasis added]

43In an updated version of the same policy, dated January 2, 2005, the only notable change is in the last sentence reproduced above, and the addition of a new, incomplete, sentence. The updated version reads:

The most commonly reported of these types of reactions have occurred as a result of reheating certain foods, seafood-allergic and peanut allergic. Ways of harzards [sic] people inhaling odors [sic] from cooking or. [sic] [emphasis added]

44It is clear from the written policy that the reheating of food was permitted and that staff were being asked to be sensitive to odours of “certain” foods that can trigger allergies, namely seafood allergies and, in the updated policy, peanut allergies. The policy failed to provide any specific guidance as to which “certain” foods run afoul of the policy.

45I accept the view of the British Columbia Human Rights Tribunal in Chauhan v. Norkam Seniors Housing Cooperative Assn., 2004 BCHRT 262, at para. 126 that the preparation of cooked foods in one’s home is an expression of ethnicity and ancestry. While the workplace is a different environment than one’s home, the connection between food and one’s ancestry is a deeply personal one that goes to the heart of the Code’s dignity-enhancing purpose. A policy permitting the heating of some foods but not others, without adequate clarity about what constitutes acceptable ingredients and without providing a discernable rationale for the rule, creates the conditions for arbitrary or discriminatory enforcement.

46Nothing in the evidence suggests that the respondents deliberately targeted the applicant for discriminatory enforcement of the microwave policy. However, the applicant argued that she was adversely affected by the enforcement of the policy. The evidence establishes that other staff members, who had previously used the microwave, ceased using it completely as a result of Ms. Telfer’s vigorous enforcement of the policy. The applicant continued to use it and testified that she attempted to comply with the policy by not heating overly odorous foods.

47I find that the microwave policy was a moving target that was virtually impossible to comply with, unless one refrained from using it entirely. In her testimony, Ms. Telfer acknowledged that it would be difficult to list which foods would fall within the policy and which would run afoul. She said it was a matter of “trial and error. You don’t know until you smell.”

48In a diverse workplace serving members of the public from a variety of ethnic backgrounds, such ambiguity leads to arbitrariness and the conditions for discriminatory enforcement. To the extent that the applicant was disciplined for her violations of the microwave policy, and that those violations constituted a factor in her termination, I find she was discriminated against on the basis of her ancestry and ethnic origin.

Dress code policy

49The applicant alleged that she was discriminated against on the basis of an intersection of sex and creed in the enforcement of the company’s dress code policy.

50Specifically, the applicant alleged that, as an identifiably Muslim woman who conforms to a manner of religiously-mandated dress, the respondents discriminatorily singled her out and issued corrective action regarding her mode of dress in a manner that constitutes discrimination and harassment within the meaning of section 5 of the Code. She further alleged that her personal choice with respect to style of hijab was not accommodated up to the point of undue hardship, in breach of section 11 of the Code.

51The key incident in relation to these allegations was the discipline meeting, held on May 16, 2008, and involving Ms. Telfer, Mr. Barnett and the applicant, during which a number of concerns were communicated with respect to the applicant’s attire. The respondents subsequently relied in part on the applicant’s “violations” of the dress code as a basis for terminating her, which is addressed below.

52The respondents argued that it was not discriminatory to enforce a neutral dress code. They implied that the dress code amounted to a bona fide occupational requirement, noting that the company and, in particular, the ISAP program, were in the business of advising newcomers with respect to finding employment. It was therefore essential that staff lead by example and dress with an appropriate degree of professionalism.

53The policy at issue in this case, entitled “Dress Code”, Policy Number AWC 2008-1, dated January 2, 2008, was well known to all staff, was included in orientation material and was reasonably clearly drafted. The policy required “business attire” at all times. It provided examples of what was permitted: “suits, dresses, skirts, dress pants, dress shoes, nylons/socks, blazers, dress shirts, turtle necks, and sweaters”; and of what is forbidden: “[j]eans of any colour, running shoes and socks….”

54In addition, the respondents went to great lengths to illustrate ways of complying with the policy. On April 25, 2008, shortly after the applicant began work, the respondents held a session called “Dress for Success”. Staff were provided with instruction on professional dressing, and Ms. Jendoubi, Ms. Ghose and Ms. Telfer modelled their respective outfits to demonstrate appropriate office attire.

55Ms. Telfer testified that she understood that the applicant, as an observant Muslim woman, dressed in a way that she believed to be required by her faith. The applicant testified that the personal significance of the hijab is dignity, identity and respect. She stated that, consistent with these values, she adheres to the principle of “modest dress and behaviour.”

56The applicant testified that she felt the workplace dress code was not ideally suited to her particular needs. For example, she stated that Ms. Telfer demonstrated how a blazer could be used to dress up an outfit, and then after work, a woman could remove the blazer for a more casual look with a sleeveless blouse underneath. The applicant indicated that she would not have felt comfortable wearing the kinds of outfits Ms. Telfer demonstrated to staff, which included exposed arms and legs. She said she resolved to dress in a religiously-appropriate professional manner. She never spoke with Ms. Telfer about these matters, and Ms. Telfer did not communicate any concerns with the applicant’s attire. On the contrary, Ms. Telfer often complimented the applicant on her fashion style.

57The first time the respondents raised an issue with respect to the applicant’s dress was the meeting convened with Mr. Barnett and Ms. Telfer on May 16, 2008. Ms. Telfer testified that a number of features of the applicant’s attire that day warranted the disciplinary meeting: She was wearing a “tight short skirt and leggings”; an anklet that “jingled”; open-toed “slippers”; and a “cap”. Ms. Telfer argued that she was justified in raising these issues with the applicant on the basis of the policy’s requirement of “business attire” and, in the case of the “slippers”, health and safety. She argued that these were all bona fide occupational requirements that were fairly and non-discriminatorily enforced.

58I find that the respondents’ enforcement of the dress code in relation to the applicant, as well as the manner of enforcement, violated the applicant’s right to be free from discrimination pursuant to section 5 of the Code.

59Employers are entitled to maintain and enforce appropriate dress code policies. However, they must ensure that such policies do not discriminate on their face (e.g., no hijab allowed) or indirectly through the application of a neutral rule that has an adverse impact on a member of a protected group (e.g., no head coverings allowed), unless they can show the rule is a necessary requirement of the job that cannot be accommodated short of undue hardship.

60The Supreme Court of Canada has held that to justify a rule that has an adverse effect based on a Code ground, the respondent must show that the rule (1) was adopted for a purpose or goal that is rationally connected to the function being performed; (2) was adopted in good faith, in the belief that the rule is necessary for the fulfilment of the purpose or goal; and (3) is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate without undue hardship. The Supreme Court has also confirmed that the duty to accommodate encompasses two components, the first being procedural (the process through which the accommodation was considered), and the second being substantive (the accommodation that was achieved or the reasons for not accommodating), see: 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 (the “Meiorin” decision).

Jewellery

61The applicant did not establish a link between wearing the anklet and a Code-protected ground. It was not discriminatory for Ms. Telfer to ask the applicant to refrain from wearing the jewellery, and there was no duty to accommodate the applicant in this regard.

Footwear

62The applicant did not establish a link between the slippers or sandals that she was wearing on May 16, 2008 and any Code ground. Therefore, it was not discriminatory for Ms. Telfer to recommend that the applicant not wear open-toed footwear in the office. It is unnecessary for me to decide whether the respondents had a legitimate interest in promoting a safe workplace that could have justified banning the wearing of open-toed shoes.

Clothing

63Regarding the respondents’ assertion that the applicant wore a “tight short skirt and leggings”, I prefer the applicant’s evidence on this point. The applicant denied that she ever wore any such outfit. She stated that, as an observant Muslim woman who dresses “modestly”, she would not have been wearing a tight or short skirt of any sort.

64The respondents attempted to introduce evidence at the hearing to demonstrate what the applicant had been wearing on the day in question. I denied the request because it was raised for the first time very late in the hearing, the allegation had not been disclosed prior to the hearing and questions about this matter were not put to the applicant on cross-examination.

65In any event, I found Ms. Telfer’s testimony on the issue of skirts and the dress code to be confusing at best. She testified that the policy would tolerate skirts with nylons, socks or bare legs, but that leggings or tight pants would not be acceptable under skirts. She also implied that certain types of culturally-distinct “skirts” would not be considered professional. Interpreted in this manner, the respondents’ dress code appears to be arbitrarily applied, subject to Ms. Telfer’s opinions and preferences about how she wants her staff to look. This constituted adverse-effects discrimination on the ground of creed against the applicant, whose religiously-conforming attire at times conflicted with the respondents’ dress code. There is no indication that the dress code rules comprised a bona fide occupational requirement within the meaning of the Code.

Style of hijab

66Finally, regarding the issue of the applicant’s hijab preference, I find that Ms. Telfer’s approach ran afoul of the Code both in substance and process.

67The applicant testified that the item consistently referred to by Ms. Telfer as a “cap” was in fact a form of hijab that the applicant had ordered online from Indonesia. She stated that she had purchased it specifically because she thought it was an elegant hijab style that she believed would enhance her professional appearance. Ms. Telfer thought differently and attempted to impose her will on the applicant, which I find to be discriminatory on the intersecting grounds of creed and sex.

68I accept Ms. Telfer’s testimony that she supports the right of Muslim women to wear the hijab in the workplace and that she accommodated the applicant from the beginning of her employment with the company with no issue. My finding of discrimination does not discount the fact that Ms. Telfer mostly accommodated the applicant.

69However, Ms. Telfer overstepped the bounds of the Code when she sought to dictate what style of hijab she would accommodate, without relying on any apparent basis other than her own personal preference. The Code guarantees not only a woman’s right to wear a religious headdress in the workplace, but also her right to choose the form of religious headdress, subject to any bona fide occupational requirements.

70My conclusion should not be interpreted to mean that an employer can never have a dialogue with an employee about the form of religious accommodation. Indeed, this is implied in the procedural duty to accommodate. There may be circumstances which narrow the forms of accommodation that can be entertained due to professional, commercial or health and safety reasons. It falls on the employer to justify any constraints on the employee’s freedom to choose the form of a dress code accommodation.

71In this case, there was no evidence beyond Ms. Telfer’s description of the headdress as a “cap” to suggest that the applicant’s form of hijab was, by any fair, objective and non-discriminatory standard, unprofessional. The written policy was silent on the issue of head coverings. There was evidence before me that another Muslim employee in the office wore a bandana to substantially cover her hair. There was conflicting evidence about whether that employee wore the scarf for religious reasons and, because she did not testify, I am not making a finding in that respect. What is clear is that the respondents did tolerate different forms of headdress, including a bandana style scarf. In such circumstances, it is difficult to see what triggered the policy enforcement against the applicant other than Ms. Telfer’s entirely subjective perception of “unprofessional” attire.

72The difficulty with enforcing a non-neutral, vague and arbitrary workplace policy is that it creates the conditions in which a person protected by the Code faces increased risk of being adversely impacted by that policy. In this case, I find that singling out the applicant for corrective action on the basis of her chosen form of hijab, which was clearly worn for religious reasons, amounted to discrimination within the meaning of section 5.

Procedural Duty to Accommodate

73Where it is necessary to communicate with an employee about an accommodation, it is important to proceed with sensitivity. The purpose of a discussion about accommodation is to ascertain the employee’s needs and to explore collaboratively how the needs can be met, short of undue hardship. This can be described as the procedural duty to accommodate, a violation of which can amount to a breach of the Code: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.) (“ADGA”) at paras. 106-108; McDonald v. Mid-Huron Roofing, 2009 HRTO 1306 at paras. 29-31.

74The respondents failed to adopt a collaborative approach to address what were clearly accommodation issues. Instead, they adopted a corrective approach and convened a “disciplinary” meeting, which undermined the procedural duty to accommodate.

75The applicant argued that both the form and content of the disciplinary meeting constituted discrimination and harassment within the meaning of s. 5 of the Code. In particular, she testified that the inclusion of Mr. Barnett in a meeting to comment on her appearance and attire was inappropriate, unwelcome and demeaning. At hearing, Ms. Telfer failed to provide a non-discriminatory explanation as to why she included Mr. Barnett in the May 16, 2008 meeting. Paul Barnett had no ownership interest in Audmax and had no employment relationship with the applicant. Ms. Telfer stated that Mr. Barnett shared her concerns with respect to the applicant’s attire and that, as a co-tenant in the office space, she believed his involvement in the meeting would be helpful.

76The procedural duty to accommodate includes maintaining privacy and confidentiality in the accommodation process. I find that the decision to invite a man, who for the applicant was nothing more than an office neighbour, to a meeting to discuss the applicant’s style of dress, constituted a further breach of the procedural duty to accommodate and contributed to the discrimination for failing to consider the applicant’s needs and sensitivities as an observant Muslim woman. The applicant did not establish that the infringement also constituted harassment within the meaning of section 5(2).

77While I make this finding of discrimination on the intersecting grounds of sex and creed, I would have had no problem reaching the same conclusion on the ground of sex alone. No woman in these specific circumstances, regardless of her level of religious observance or of what faith, should be subjected to this form of disciplinary meeting.

Bona fide occupational requirement

78Finally, there was no evidence from the respondents in support of a conclusion that its directive with respect to the applicant’s style of hijab constituted a reasonable and bona fide occupational requirement that could not be accommodated without undue hardship. The failure to accommodate the applicant’s personal hijab preference amounted to a breach of the Code on the intersecting basis of sex and creed.

Surveillance and distrust

79The applicant alleged that following the resignation of the only other two Muslims in the workplace around mid-May 2008 and amid an increasingly poisoned workplace, she was treated with suspicion and subjected to surveillance on the basis of unfounded assumptions related, at least in part, to her shared Muslim identity with the two staff members who quit. She argued that these suspicions were based not on any legitimate grounds or cause, but rather in discriminatory stereotypes.

80Several events occurred that informed the applicant’s belief that she was being subjected to heightened scrutiny. One evening, shortly after the two other Muslim women had resigned, the applicant testified she received a phone call from Mr. Chung, which he did not deny in his testimony, advising her that she should be careful because Ms. Telfer was keeping an eye on her. The applicant was also requested to obtain security clearance, which was not a requirement of her job. The file management system was changed, requiring her to request access through the program Manager, Ms. Andoseh, to files on which the applicant routinely worked. She was subjected to innuendo suggesting she was conspiring with the two staff who had quit. She observed Ms. Telfer watching her more carefully and suspiciously, which Ms. Telfer did not deny in her testimony and, in fact, justified.

81The respondents argued that their suspicions were real and legitimate, supported by information that emerged in the workplace and was observed by management. In particular, the respondents relied on a number of allegations relating to the applicant’s behaviour that they argued gave rise to reasonable suspicion: missing files, secretive cell phone use in the office, suspicious behaviour, and unauthorized intrusions into other people’s desks. The respondents maintain that it was not discriminatory to closely monitor an employee they believed to be unscrupulous, untrustworthy, unethical and unprofessional.

82The respondents did not plead sufficient particulars of the allegations against the applicant, nor did they disclose any supporting documentation, prior to the hearing for her to effectively respond. At the hearing, the respondents failed to produce two key witnesses, Paul Barnett and Margaret Andoseh, whose evidence would have been critical to establishing that the respondents’ suspicions about the applicant were well founded. I must draw a negative inference from the failure of these witnesses to testify, and therefore conclude that the suspicions about the applicant are unproved.

83I am not, however, convinced that the respondents were acting, consciously or unconsciously, on the basis of discriminatory considerations. The applicant urged me to infer a nexus between the respondents’ unfounded suspicions and the applicant’s religion or ethnic origin. The Policy on Racism and Racial Discrimination describes Islamophobia as an emergent form of racism against Muslims based on stereotypes and fear. The applicant also correctly argued that discrimination, especially racial discrimination, is rarely overt. It must be inferred from circumstantial evidence. On the evidence before me, such a conclusion would be too speculative and I therefore cannot find that the applicant was directly discriminated against.

Termination

84The applicant alleged that from the time that her two Muslim colleagues quit, she believed it was just a matter of time before her employment would be terminated. She testified she went into work each day not knowing if it would be her last. She even began looking for a new job, assuming that her time at Audmax was limited. On June 3, 2008, the applicant’s fear was confirmed when was told her employment was being terminated due to lack of “organizational fit”.

85The respondents admit that in the weeks leading up to the applicant’s termination they were watching her closely, not for discriminatory reasons, but rather because they were entitled to. They argued that, as a probationary employee demonstrating suspicious behaviours, the applicant was legitimately being monitored for the purpose of deciding her future with the company.

86A protected ground need not be the only or even a substantial factor in the decision to terminate for an employer to run afoul of the Code. The applicant bears only the onus of showing that a protected ground was a factor in the decision to terminate in order to turn the onus on the employer to explain or justify the decision.

87I find on the facts that there is sufficient evidence to support the conclusion that the applicant’s ethnic and/or religious background was a contributing factor in her termination. I have already found discrimination occurred during the employment; it is up to the respondents to justify the termination of employment by providing a reasonable and plausible explanation based on non-discriminatory considerations.

88While the only reason the applicant was given for the termination was her lack of “organizational fit”, in testimony, Ms. Telfer explained that the “for cause” termination was based on the applicant’s record of non-compliance with office policies, her unprofessional comportment, and an allegation that she had made representations to clients that violated the terms of the project’s funding agreement and amounted to a serious breach of professional confidence. Ms. Telfer raised this last allegation for the first time in oral evidence and admitted that the basis for the allegation was second-hand information she had received from Ms. Andoseh, who did not testify in these proceedings. Given the lateness of the allegation being raised and the fact that no witnesses with direct knowledge or information were called to give evidence, I am unable to give any weight to this issue in considering whether the respondents had a legitimate basis for terminating the applicant’s employment.

89In Smith v. Ontario (Human Rights Commission) (2005), 2005 CanLII 2811 (ON SCDC), 52 C.H.R.R. 89 (Div. Ct.), the Ontario Divisional Court reversed a finding by the Tribunal that a termination was not discriminatory. The Court emphasized that the proper enquiry for deciding whether a termination is discriminatory is not to look for a discriminatory motivation on the part of the respondents, but rather to assess whether, in the circumstances, a prohibited ground was likely a factor in the dismissal.

90Given my findings with respect to the respondents’ liability for discrimination in the enforcement of the microwave policy, the applicant’s style of hijab, and in the manner of discipline, I must infer, in the face of unproved allegations supporting the respondents’ decision to terminate the applicant’s employment, that on a balance of probabilities, the termination was discriminatory.

REMEDY

91Section 45.2 of the Code sets out the Tribunal’s remedial powers:

45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

92It is well known that the powers of the Tribunal are not designed for punitive purposes. Rather, human rights remedies aspire to compensate victims for the effects of the discriminatory treatment, as well as serve the public interest goals of removing discriminatory barriers and policies, promoting future adherence to the Code, and educating the parties and the wider public about the values of the Code.

93In finding that the respondents breached the applicant’s right to be free from discrimination on the basis of ancestry, ethnic origin, sex and creed, I am not finding that the respondents acted maliciously or in bad faith. I do find that the respondents acted recklessly, which led to a discriminatory impact on the applicant.

Monetary compensation

94The applicant sought general damages of $35,000 for injury to dignity, feelings and self-respect as a result of the discrimination. Counsel argued that the recent amendments to the Code, removing the $10,000 maximum for mental anguish damages, signal the legislature’s intent to invite more robust monetary awards where the Tribunal makes findings of discrimination.

95The respondent argued that $3,000 would represent a fair award.

96Monetary compensation is awarded as a way to make victims of discrimination whole. The exercise of quantifying the impact of discriminatory treatment on a person is not a precise science. It is important not to set the quantum of damages too low even in less egregious cases, “since doing so would trivialize the social importance of the Code by effectively creating a ‘license fee’ to discriminate”: Sanford v. Koop, 2005 HRTO 53, at para. 34. In ADGA, the Divisional Court held that tribunals should consider the following factors when awarding general damages: humiliation, hurt feelings, the loss of self-respect, dignity and confidence, the experience of victimization, vulnerability, and the seriousness of the offensive treatment.

97In addition to the effects of discrimination on the victim, it is also appropriate to consider the surrounding circumstances and incorporate an objective component to the quantification of monetary compensation: see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.

98The applicant urged me to find that where intersecting grounds of discrimination are implicated, the impact on the victim is often compounded. There is no doubt that these events deeply affected the applicant, who, as a blind, racialized, visibly Muslim woman, faces numerous systemic barriers to employment. The intersecting grounds of discrimination were interconnected in the way in which the applicant was discriminated against and, more importantly, in the way in which she experienced the discrimination. This caused a more acute impact and requires a financial remedy that appropriately accounts for the effects of the discriminatory conduct.

99Furthermore, the applicant was not only discriminated against during employment, but also in being terminated. Termination of employment, by its very nature, has a significant impact on a person’s feelings and self-esteem. Where it is done wrongfully or discriminatorily, the impact is heightened. The applicant was working a job that was for her more than a career, but also a passion. She described how she had undergone major surgery in March 2008, prior to commencing employment with Audmax, and that the termination ended up being “too much to handle”. She described feeling “deflated” and “emotionally drained”. I accept on the basis of the applicant’s evidence that she suffered a loss of self-respect, dignity and confidence.

100Finally, in examining the surrounding context and objective factors, it must be noted that the respondents are actively engaged in Code-related work, providing services to vulnerable members of diverse communities. Their failure to appreciate the requirements of the Code and acknowledge their shortcomings, while at the same time asserting their “human rights expert” status throughout the hearing, suggests they may require assistance to ensure their future compliance with the Code.

101There are mitigating factors, however, that do not enable me to accede to the applicant’s request for $35,000 in monetary compensation. The events occurred over a relatively short period of time, were not of significant frequency or duration, and were not carried out intentionally or maliciously. Further, there is no clinical or expert evidence establishing any psychological or medical effects on the applicant.

102In the light of the facts of this case, I find that an award of $15,000 in monetary compensation for the infringement of the applicant’s rights under the Code is appropriate.

Restitution

103Where a breach of the Code has been found, an applicant is also entitled to restitution for monetary losses suffered as a result of the breach. The purpose of restitution orders is to return the applicant to the position that she would have been in had she not been discriminatorily terminated. The applicant argued that she had signed a six-month contract that would have ended on December 31, 2008. She secured employment commencing on December 18, 2008 and therefore seeks payment of wages from the date of termination up to and including December 17, 2008.

104Applicants have a duty to mitigate their losses, which means they must try to find another job. In determining the appropriate restitution award, I must consider the applicant’s mitigation efforts following termination.

105The applicant testified that she began looking for alternative employment as soon as she came to believe she was being set up for termination from Audmax. She researched employment opportunities on internet job sites and applied for approximately 12 positions. On the evidence, I am persuaded that the applicant made reasonable and good faith efforts to find alternative employment in her chosen field and within her areas of expertise.

106On December 18, 2008, the applicant commenced full-time employment as a program worker with an agency that provides settlement services to newcomer Canadians.

107The applicant would have earned $21,070.00 at Audmax between June 4 and December 17, 2008, based on earning $21.50 per hour, at 35 hours per week, for a period of 28 weeks.

108The respondents argued that the applicant is not entitled to restitution because the respondents did not act in bad faith and the applicant was a probationary employee with no right to continued employment. No case law was relied upon to support these arguments and I am not satisfied these considerations are relevant to my analysis of her entitlement to wage loss. The focus of this enquiry is on the applicant’s efforts to mitigate, not the employer’s state of mind.

109Based on the foregoing, I find that the applicant is entitled to restitution in the amount that she seeks.

Interest

110The applicant is entitled to an order for pre-judgment interest in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, (the “CJA”). Pre-judgment interest will run from the date of the Application, September 17, 2008, which is also roughly the mid-point in the period of wage loss. Post-judgment interest on the awards is payable, pursuant to section 129 of the CJA.

Public Interest Remedies

111The applicant asked that:

(a) Audmax retain at its own expense an outside expert who has no affiliation to Ms. Telfer to review Audmax’s practices and policies and make recommendations where they are not consistent with the Code;

(b) Ms. Telfer, at her own expense, be required to take a training course on religious and cultural anti-discrimination practices in the workplace; and

(c) The respondents provide a copy of this decision to all the present staff at the workplace and to the funders of any present projects or programs at Audmax.

112The respondents made no submissions on the issue of public interest remedies, though it can be inferred from their other submissions that they consider themselves experts in the area of human rights and cultural sensitivity and do not require a review of their policies.

113Given my findings in the circumstances of this case, I agree with the applicant that a review of Audmax’s policies would be beneficial. I also agree that Ms. Telfer would benefit from training related to managing a culturally diverse workplace. I do not agree that ordering the respondents to provide a copy of this decision to their current staff and funders would necessarily promote the interests of the Code.

ORDER

114Having found that Audmax and Ms. Telfer violated the applicant’s rights under section 5 of the Code to equal treatment on the basis of ancestry, ethnic origin, creed and sex, the Tribunal orders:

(a) The respondents are jointly and severally liable to pay $15,000 to the applicant for violation of her inherent right to be free from discrimination, and for injury to her dignity, feelings and self-respect.

(b) The corporate respondent is liable to pay the applicant $21,070 for loss of wages.

(c) The respondents shall pay the applicant pre-judgment interest running from September 17, 2008.

(d) The respondents shall pay the applicant post-judgment interest on any accumulated principal and interest from the date that is 30 days after the date of this Order.

(e) The corporate respondent shall retain at its own expense a qualified consultant to review Audmax’s practices and policies, and make recommendations where they are not consistent with the Code.

(f) The personal respondent shall enrol in an appropriate training course on religious and cultural anti-discrimination practices in the workplace.