HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ruchika Vaid
Applicant
-and-
Freeman Formalwear Limited, Mohammed Abbas and Sam Freeman
Respondents
case Resolution Conference DECISION
Adjudicator: Mark Hart
Indexed as: Vaid v. Freeman Formalwear
AppearanceS BY
Ruchika Vaid, Applicant ) On her own behalf
Freeman Formalwear Limited, )
Mohammed Abbas and Sam Freeman, ) Luke Saites, Counsel
Respondents )
1This is an Application made under s. 53(3) of the Ontario Human Rights Code (the “Code”), dated November 11, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 30, 2008.
2The applicant alleges that she experienced discrimination in employment because of pregnancy, contrary to sections 5 and 9 of the Code.
3The Case Resolution Conference (“hearing”) in this matter was held on November 10, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant, the two personal respondents and two witnesses called by the respondents. All parties were afforded the opportunity to cross-examine opposing witnesses at the conclusion of my questioning.
The Evidence
4The applicant was hired by the corporate respondent to work as a sales associate at its store in the Colossus Centre in Woodbridge in early September 2007 and commenced work on September 10, 2007. The personal respondent, Mohammad Abbas is the manager of the Colossus Centre store and was the applicant’s direct supervisor.
5The applicant was pregnant at the time she was interviewed and hired, but she did not disclose this to Mr. Abbas. The applicant’s evidence is that, during the course of her interview, she was asked by Mr. Abbas whether she was planning to have a family, and she said yes. Mr. Abbas’ evidence is that this discussion occurred in casual conversation at the store after the applicant had been hired, and the applicant said that she had just gotten married and had no current plans to have children.
6In her complaint, the applicant alleged that Mr. Abbas made comments in the store that were derogatory and disrespectful to women. This is denied by the respondents. In her evidence before me, the applicant was unable to identify any specific occasion on which she alleges Mr. Abbas made such comments. In the absence of any such evidence, I am unable to give credence to the applicant’s allegations in this regard.
7In early December 2007, the applicant asked Mr. Abbas for a day off on December 12, 2007 for a doctor’s appointment. The applicant’s evidence is that Mr. Abbas asked her whether this was a regular doctor’s appointment or whether it related to her pregnancy, to which the applicant replied that it was related to her pregnancy. The applicant’s states that Mr. Abbas said later that day that she should have told him that she was pregnant at time he hired her, and expressed concern that she would not be there for peak season and that he would have to train people to replace her.
8The applicant’s evidence is that on December 14, 2007, after her doctor’s appointment, she had a further discussion with Mr. Abbas about her pregnancy. She states that Mr. Abbas asked when she was planning to take her maternity leave, to which she replied that she intended to work as long as she could before going off on leave. The applicant states that Mr. Abbas expressed concern about her coming to work in the snow and being able to perform certain aspects of the work while pregnant, and said that it would be better for the applicant if she quit her job. The applicant states that she called home and spoke to her sister and was advised to request a letter from Mr. Abbas stating that he wanted her to quit, which the applicant then conveyed to Mr. Abbas. In response, the applicant states that Mr. Abbas asked who was advising her, and also said that he could make up any reason to fire her.
9Mr. Abbas’ evidence is that he did not know about the applicant’s pregnancy until after her doctor’s appointment. He says that the applicant told him that she was pregnant on December 14, 2007. Mr. Abbas acknowledges asking the applicant when she planned to take maternity leave, to which the applicant replied that she planned to take leave at the end of March 2008 or in April 2008. Mr. Abbas states that he then realized that the applicant must have been pregnant at the time she was hired, as she was planning to commence her leave in a few months. He states that he asked the applicant why she hadn’t told him before, for which the applicant apologized and said it was her mistake. Mr. Abbas does acknowledge expressing concern that they were heading into the busy period in the spring and summer when the applicant would be away on leave, and said that if the applicant had told him earlier, he could have brought someone in to be trained.
10Mr. Abbas also acknowledges expressing concern about the applicant’s ability to do certain aspects of the job while she was nearing the end of her pregnancy, and about the potential for the applicant to slip when coming to work in the snow. He says that he expressed concern to the applicant that if something happened to her or her fetus, then the respondents could be held responsible. Mr. Abbas denies telling the applicant that she should quit her job, or stating that he could make up any reason to fire her. He does acknowledge being upset during this conversation, because the applicant hadn’t disclosed her pregnancy earlier and suddenly now he had to think about alternatives.
11On the evening of December 14, 2007, the applicant called the personal respondent Sam Freeman, who is the co-president and one of the owners of the corporate respondent, and asked whether it was company policy to have women resign when they become pregnant. There is no dispute that Mr. Freeman told the applicant that this was not company policy. Mr. Freeman told the applicant that he was having dinner, and that someone would call her back. The applicant waited for half an hour and when she had not received a call back, she placed another call to Mr. Freeman, who told her that he was still eating dinner.
12After receiving the applicant’s call, Mr. Freeman contacted Mr. Abbas to discuss the situation. He told Mr. Abbas that pregnant women have very strong rights in the workplace, and that it is the company’s obligation to accept them and to accommodate their needs in the workplace. Mr. Freeman’s evidence is that he was assured by Mr. Abbas that his actions had been in accordance with the company’s legal obligations. Mr. Freeman also asked Mr. Abbas to return the applicant’s call.
13Mr. Abbas subsequently called the applicant, and said that she should not have called Mr. Freeman and disturbed him in the evening and that this matter could have been discussed the following day during normal business hours. Mr. Abbas’ evidence is that he conveyed to the applicant what he had been told by Mr. Freeman, and said that she could take her maternity leave whenever she wanted. In contrast, the applicant’s evidence is that Mr. Abbas told her that Mr. Freeman had agreed with him that it would be difficult for the applicant to perform certain duties while she was pregnant.
14The applicant’s evidence is that from the time Mr. Abbas found out about her pregnancy, his attitude towards her changed. She states that at times he would not speak directly to her, but would speak in the third person by saying things like “someone should do this” rather than asking her directly. She said that he often wouldn’t speak to her if they were alone in the store together and there would be “pin drop” silence, and that he wouldn’t say good night to her unless she said this first.
15Mr. Abbas’ evidence is that his attitude towards the applicant did not change, with the exception he told his other employees to be, and was himself, more solicitous about ensuring that the applicant was assisted in performing tasks that he felt might be difficult for her in light of her pregnancy. Mr. Abbas’ evidence was supported by two other employees who worked at the store, who testified that they did not see any change in Mr. Abbas’ attitude towards the applicant and did not observe the specific behaviours identified by her. These employees also confirmed that they were told by Mr. Abbas about the applicant’s pregnancy, and told to assist her with her duties.
16On January 7, 2008, the applicant received a letter from Mr. Abbas stating that several times he had found the applicant sleeping during work hours and had cautioned her not to do so. This letter refers to a specific incident that is alleged to have occurred on January 3, 2008, when the applicant was sleeping and snoring heavily at the front desk and had to be awoken by Mr. Abbas. The letter states that this is not acceptable conduct, that the applicant should treat this as a final warning, and that if it happened again the company would take appropriate action.
17The applicant testified that the incidents alleged in this letter have never occurred, and that she has never slept while working at the store. The applicant views this letter as Mr. Abbas acting on his threat to make up a reason to fire her. The applicant states that receiving this letter caused her to experience serious distress which she feared would negatively impact her pregnancy, and so she obtained a note from her doctor putting her off on maternity leave effective January 16, 2008.
18Mr. Abbas gave evidence consistent with what he stated in his letter. In addition, the two employees who were called as witnesses in this proceeding also testified that they had observed the applicant sleeping on several occasions while at work. The applicant contests this evidence on the basis that these two individuals are long-term employees who have worked with Mr. Abbas for some time and who continue to be employed by the corporate respondent. She also alleges that their evidence is markedly similar to the evidence given by Mr. Abbas.
19With regard to the alleged similarity between the evidence given by these three individuals, Mr. Abbas in his letter states that he has found the applicant sleeping “several” times and then specifically mentions the January 3 incident. He also states that other staff members have witnessed the same situation. One of the employees, Masood Abbas, who is no relation to the personal respondent Mr. Abbas, testified that he recalls seeing the applicant sleeping on the job on three or four occasions, and says that when he saw this, he would wake her and tell her to go to the back if she wanted to sleep. He states that he did not inform Mr. Abbas about the applicant sleeping on the job, but did confirm that he had seen this when specifically asked. The other employee, Chikka Bharmalingam, testified that he observed the applicant sleeping on the job on four or five occasions, but says that he didn’t try to wake her and never reported this to Mr. Abbas. Having heard the evidence of these three individuals, I do not find sufficient marked similarity in their testimony to support a finding that they colluded in fabricating this evidence.
20Mr. Abbas sent his January 7, 2008 letter to the corporate respondent’s head office, where it came to the attention of Mr. Freeman. Mr. Freeman candidly acknowledged in his testimony that he was upset at Mr. Abbas for having issued this letter without first consulting with him and the company’s Retail Supervisor in light of the issue raised by the applicant about her pregnancy. Mr. Freeman testified that he told Mr. Abbas that he lacked judgment in issuing this letter, and this was “over the line” where Mr. Freeman should have known about this beforehand.
21The applicant filed her human rights complaint on January 30, 2008, while she was still an employee of the corporate respondent. The evidence indicates that the applicant remained on the company’s books as an employee at least until after she had completed her maternity leave, and that the applicant could have returned to her employment following her leave but chose not to do so.
Analysis and Decision
22The evidence of Mr. Abbas gives rise to several concerns. First, as he acknowledges, he was upset with the applicant that she had not informed him earlier about her pregnancy. The fact is, however, that on the basis of Mr. Abbas’ own evidence, the applicant gave him over three months’ notice prior to when she planned to commence her maternity leave, which Mr. Abbas himself states wasn’t going to be until late March or April 2008. As the applicant had only worked at the store for about three months at the time she informed Mr. Abbas of her pregnancy, providing over three months’ notice of a maternity leave should have afforded Mr. Abbas more than sufficient time to hire and train another sales associate. The fact that Mr. Abbas was upset when given what appears to be sufficient notice indicates to me that he was more upset about the fact that the applicant was pregnant than about the timing of her notice to him.
23In addition, Mr. Abbas himself confirmed that in response to the news of the applicant’s pregnancy, he raised concerns about whether the applicant could perform some of her job duties, whether she would have difficulty coming to work in the snow, and who would bear responsibility if something happened to her. In making these statements, Mr. Abbas clearly has the accommodation process backwards. If a woman is pregnant and requires accommodation in the performance of her job duties, it is her responsibility to come forward to request such accommodation. It is not the employer’s role to question a pregnant employee about whether she can perform certain duties, particularly in the absence of an indication of any actual difficulty in performing such duties. The applicant had been working at the store while she was pregnant for three months up to December 14, 2007, apparently with no concern expressed by Mr. Abbas regarding her ability to perform the duties of the position. The only thing that changed on December 14, 2007 was that Mr. Abbas became aware of the applicant’s pregnancy, and this alone appears to have prompted him to express the concerns that he did.
24It also, in my view, is not appropriate for an employer to raise with a pregnant employee an issue about potential responsibility for injury to her or her fetus, particularly in the absence of any actual evidence of any risk to the employee or fetus. If Mr. Abbas was unclear about the company’s potential liability or that of himself personally, the appropriate place to raise that concern would have been with head office, from which he could have received an informed response. To raise this issue directly with the applicant in conjunction with expressing concerns about her ability to perform some of her work duties creates a message from Mr. Abbas as her supervisor that her pregnancy is creating problems in the workplace.
25In this context, whether or not he actually said to the applicant that she should quit, I find that Mr. Abbas was signalling to the applicant that her pregnancy was not welcome in the workplace. I find that he thereby created an unwelcome and discriminatory work environment for the applicant because of her pregnancy, in violation of the Code.
26I also accept the applicant’s evidence and find that Mr. Abbas asked her whether she was planning to start a family when she was interviewed for the job. I find such a question to be consistent with Mr. Abbas’ expressed and unwelcome attitude following the disclosure of the applicant’s pregnancy. I find that the asking of such a question during a job interview is inappropriate and discriminatory, and supports a further finding of a violation of the Code.
27Having said that, I am unable to find that the evidence supports the applicant’s position that Mr. Abbas fabricated the concern about her sleeping on the job that was expressed in the January 7, 2008 letter, particularly in light of the fact that two other witnesses testified to having seen the applicant do this. As indicated above, I do not find the evidence of these individuals to be so markedly similar as to indicate collusion between them, nor do I find that there is other evidence sufficient to support that this evidence was fabricated.
28The applicant has raised the fact that she was made a keyholder for the store by Mr. Abbas as an indication that she was performing her job duties well, and takes the position that she would not have been made a keyholder if she had been sleeping on the job. I do not view it as being necessarily incompatible for the applicant to have been made a keyholder and also to occasionally have fallen asleep on the job. In any event, the fact that the applicant was made a keyholder is not sufficient to rebut the evidence given by Mr. Abbas and the two employees.
29In the circumstances of the unwelcome environment that was created for her, it is understandable that the applicant would fear that this disciplinary letter was the start of a process that might end in her termination. I also do not question the applicant’s entitlement to commence her maternity leave at the time that she did. However, I am not able to award the applicant compensation for lost income as a result of her decision to leave her job at the time that she did, or for her decision not to return when her leave ended. I accept the respondents’ evidence that the applicant remained an employee and could have returned following the end of her leave. I do not find that the mere fact that she received the January 7, 2008 letter or the fact that she had an outstanding human rights complaint against the respondents provides a sufficient basis for her to choose not to return to work and yet nonetheless be able to claim compensation for this choice.
30I found Mr. Freeman to be a credible and candid witness, and I accept his evidence that he was upset with Mr. Abbas when he learned about the January 7, 2008 letter. I also accept Mr. Freeman’s evidence that he made it clear to Mr. Abbas that he wanted to be notified before any further such steps were taken. While the applicant submitted that Mr. Freeman should also have contacted her following his becoming aware of the January 7, 2008 letter, this does not accord with how the chain of command works in most companies. As co-president, Mr. Freeman appropriately communicated his displeasure with the retail supervisor, who reported directly to Mr. Freeman, and with Mr. Abbas as the store manager. The point wasn’t that the letter shouldn’t have been issued, but that Mr. Freeman should have been informed and consulted prior to any such letter being sent out.
31As a result, based upon the violations of the Code that I have found, the applicant is entitled to some award of monetary compensation for the injury to her dignity and self-respect, but not to an award of compensation for lost income. While I have found that Mr. Abbas violated the Code by asking the applicant at the job interview whether she was planning to have a family, he did nonetheless hire her and there appear to have been no problems with the applicant’s work until the disclosure of her pregnancy on December 14, 2007. I have found that Mr. Abbas did create an unwelcoming work environment for the applicant in the manner indicated above; however, the evidence indicates that the applicant was assured by Mr. Freeman that evening that it was not the company’s policy to force pregnant women to quit.
32In all of the circumstances, I find that an award of monetary compensation in the amount of $3,000.00 is appropriate.
ORDER
33For all of these reasons, I make the following order:
I find that Mr. Abbas and the corporate respondent violated sections 5(1) and 9 of the Code by asking the applicant at the job interview whether she was planning to have a family;
I further find that Mr. Abbas and the corporate respondent violated sections 5(1) and 9 of the Code by creating an unwelcoming work environment for the applicant because of her pregnancy;
I find Mr. Abbas and the corporate respondent to be jointly and severally liable to pay to the applicant $3,000.00 without deduction as monetary compensation for the injury to her dignity and self-respect;
Post-judgment interest at a rate of 2.0% shall apply on this amount from 30 days following the date of this Decision;
The Application is dismissed as against Mr. Freeman.
Dated at Toronto, this 30th day of December, 2009.
“Signed by”
Mark Hart
Vice-chair