Harold Brooks v. Total Credit Recovery Limited and Ted Jaipaul, 2012 HRTO 1232

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harold Brooks Applicant

-and-

Total Credit Recovery Limited and Ted Jaipaul Respondents

DECISION

Adjudicator: Mark Hart Date: June 22, 2012 Citation: 2012 HRTO 1232 Indexed as: Brooks v. Total Credit Recovery Limited

APPEARANCES

Harold Brooks, Applicant Jayson Thomas, Counsel

Total Credit Recovery Limited and Ted Jaipaul, Respondents Bernard Gasee, Counsel

Introduction

1This is an Application filed on September 7, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of race, colour, ancestry and ethnic origin.

2The hearing in this matter was held on February 15, 2012 in accordance with the expectation that hearings under the Code proceed in a fair, just and expeditious manner. I heard from the applicant, the personal respondent and an expert witness (Dr. Heather Lotherington) called by the respondents. The parties further agreed that I could rely upon certain written statements provided by five of the applicant's co-workers, without the necessity for these individuals to be called to testify in person.

The parties

3The corporate respondent Total Credit Recovery Limited ("TCR") is a privately held Canadian corporation that provides debt collection services to the federal and provincial governments along with various large public businesses across Canada. TCR has approximately 500 employees across Canada, and operates as a licensed collection agency.

4The applicant commenced employment with TCR in January 2006 and was employed as a senior collections officer working out of TCR's North York office. The applicant self-identifies as an African Canadian male from the East Coast of Canada. The applicant's employment with TCR was terminated on September 30, 2010. No allegation of any violation of the Code is raised in this proceeding arising out of the termination of the applicant's employment.

5The personal respondent Ted Jaipaul is TCR's Director of Operations and also works out of the North York office. Mr. Jaipaul self-identifies as Black and is originally from Guyana in South America.

The incident

6The incident that gives rise to this proceeding occurred on Friday, April 30, 2010 and can be quite simply stated. Much of the evidence regarding this incident was not in dispute. However, where I have needed to resolve any conflicts in the evidence, I have assessed credibility in accordance with the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) at pp. 356-357.

7TCR has a dress code for its employees that can be described as business casual. Fridays and weekends are referred to as "casual days", and the dress code is relaxed somewhat, permitting employees for example to wear jeans and clean running shoes.

8The applicant arrived for work on the morning of April 30, 2010, which was a casual day, dressed in what was described by the applicant as an Adidas soccer jersey, which had the Kenyan team crest on the back and a small crest on the front. He was also wearing a pair of black loose fitted jeans and Nike running shoes. Both the soccer jersey and the jeans were shown to me at the hearing. The applicant's evidence is that he had previously worn these items of clothing to work on casual days.

9Mr. Jaipaul testified that in the time leading up to April 30, 2010, he had been concerned about a lack of compliance with TCR's dress code. On the morning of April 30, 2010, he was walking down a corridor towards the cubicle occupied by the applicant's supervisor. There is no dispute between the parties that the applicant's supervisor is an African Canadian male. The applicant's cubicle was located across from his supervisor's (there is a small dispute as to whether it was directly across or one removed, which is not material to my decision), such that Mr. Jaipaul would be able to see the applicant from the back as he approached the supervisor's desk.

10Upon reaching the supervisor's desk, Mr. Jaipaul spoke to the supervisor over the cubicle wall adjacent to the corridor. From this vantage point, Mr. Jaipaul could see the tops of the applicant and other employees who were working in the cubicle rows. There is no dispute that Mr. Jaipaul said to the applicant's supervisor, "Have you seen Brooksy? Look at him. He looks ghetto." Mr. Jaipaul's evidence is that this was intended to be a private conversation between him and the applicant's supervisor. Nonetheless, Mr. Jaipaul's comment was overheard by the applicant and other employees. There is no dispute that the applicant responded to the comment immediately by saying, "Watch your tongue." The applicant's evidence is that in response, Mr. Jaipaul repeated to the applicant directly, "Look at you. You're ghetto." The applicant's evidence is that he once again told Mr. Jaipaul to "watch his tongue". The applicant states that after this, Mr. Jaipaul used the term "ghettoville", although in his evidence before me the applicant did not provide the context in which this term was used. The applicant recalls a particular co-worker who repeated the word "ghettoville?" in surprise. This co-worker was one of the individuals whose written statement is before me. In this written statement, this co-worker records Mr. Jaipaul as saying that the applicant "looks like he's from ghettoville".

11Mr. Jaipaul's evidence regarding the precise exchange of words was quite vague, although he did acknowledge on cross-examination using the term "ghetto" at least three or four times in the course of his conversation with the supervisor and the applicant directly. In these circumstances, based on the totality of the evidence before me, I find that Mr. Jaipaul made the comments as alleged by the applicant and the co-worker.

12The applicant was angered by Mr. Jaipaul's comments and wanted Mr. Jaipaul to apologize and to proceed with him to Human Resources to discuss the matter. Mr. Jaipaul did not apologize at that time and refused to accompany the applicant to Human Resources, as he did not feel comfortable going down the elevator or stairs with the applicant in his state of anger. Mr. Jaipaul's evidence is that, upon returning to his office, he tried to contact the Human Resources Director about the incident, but found that she had not yet arrived at work.

13The applicant states that before leaving the area, Mr. Jaipaul told the applicant's supervisor to send the applicant home. The applicant states that he was taken into a boardroom by his supervisor and told that he needed to go home. The applicant states that at this point, his supervisor's manager arrived and the two of them went down to Human Resources. The applicant states that he spoke to a Human Resources employee, and was told that the Human Resources Director was not yet at work. After waiting for a few minutes, the applicant was told by his supervisor's manager that he needed to leave the building, so the applicant went out and sat in his car.

14Later that morning, the applicant was brought back in to the building to the Human Resources department, where he met with Mr. Jaipaul and with the Vice-President, Compliance. Mr. Jaipaul's evidence is that at the start of this meeting, he apologized for any misunderstanding. It was clear from Mr. Jaipaul's evidence that he did not understand why the applicant was so upset about his comments, and attributed the applicant's emotions to a recent death in the applicant's family. Mr. Jaipaul also testified that his apology was a form of rote apology that he typically makes to try to defuse a conflict situation, rather than a recognition that he had done anything wrong.

15The applicant's evidence is that he asked whether Mr. Jaipaul was going to be allowed to get away with what he had said. He states that in response, he was told that what Mr. Jaipaul had said was merely a joke and that Mr. Jaipaul did not mean anything by it. There is no evidence before me to indicate that any action was taken against Mr. Jaipaul arising out of the comments he had made.

16The applicant testified that at this meeting, Mr. Jaipaul made specific reference to having seen the Kenyan logo on the back of the applicant's jersey. I do not accept this evidence. No mention is made of this allegation in the Application or in any of the materials filed with the Tribunal prior to the applicant's testimony. Mr. Jaipaul denies that he saw the Kenyan logo. While Mr. Jaipaul may have briefly seen the back of the applicant as he walked down the corridor towards the supervisor's cubicle, I do not accept that it is more likely than not that he saw and recognized the Kenyan team logo on the back of the applicant's jersey, particularly given that the back of the jersey would have been partially obscured by the back of the applicant's chair.

17Mr. Jaipaul states that at the end of the meeting, he apologized again and shook hands with the applicant and understood that the issue had been resolved. This is disputed by the applicant. While Mr. Jaipaul may have apologized again at the end of the meeting, it is clear from his testimony at the hearing that Mr. Jaipaul did not then and does not to this day understand why the applicant was upset by his comments. While this second apology may have been somewhat less of a rote apology than the one given at the start of the meeting, I find that it did little to assuage the applicant's upset given that Mr. Jaipaul failed to recognize that the terms he used were inappropriate.

18The applicant's evidence is that at the end of the meeting, he was asked by the Vice-President, Compliance what he intended to do, to which the applicant replied that he could not provide an answer.

19After the meeting ended, there is no dispute that the applicant returned to work and no further issue was raised that day about his manner of dress.

20The applicant's evidence is that, following this incident, references to him being "ghetto" became somewhat of a common joke among his co-workers. He states that when he saw his co-workers, they would say things like "Hey Brooks, that's ghetto" or raise the issue with him. He states that it got to the point where he no longer wanted to have lunch or share breaks with his co-workers and would simply go out to his car. His evidence is that the comments made by Mr. Jaipaul made him feel disrespected and he felt that the comments were related to his race. He states that following this incident, he felt that he was being looked at and really did not feel like going to work, but he had no choice because he had to work.

Analysis and Decision

21The legal issue before me is whether the comments made by Mr. Jaipaul on April 30, 2010 created a poisoned work environment for the applicant because of his race, colour or ethnic origin, contrary to s. 5(1) of the Code. I will not address the alleged ground of ancestry, as the applicant identified his ancestry as being from the East Coast of Canada, and no allegation of discrimination is raised in this proceeding arising out of the applicant's East Coast ancestry. I also do not believe it is necessary to address the cited ground of ethnic origin, as in my view the cited grounds of race and colour are more appropriately applied in this case.

The respondents' position and evidence

22The respondents' position is that Mr. Jaipaul's comments were not related to the applicant's race or colour, but rather were related to the applicant's manner of dress on that particular day. Mr. Jaipaul's evidence is that he has two teenage children who are interested in wearing "ghetto clothing", which he understands as a casual and urban style of dress. He states that the terms "ghetto clothes" and looking "ghetto" are used commonly within his family in this context. He states that this was the context in which he referred to the applicant as looking "ghetto", as being clothed in a casual, urban style of dress that was not appropriate for work even on a casual day.

23In support of this usage of the term "ghetto", respondents' counsel filed with the Tribunal a number of pages of internet searches for images and websites responding to the search terms "ghetto clothing", "how to look ghetto" and "ghetto clothes". These search results indicate that the terms "ghetto clothing" or "ghetto clothes" have insinuated themselves into popular culture as indicating an urban style of clothing, although this style clearly appears to have arisen from and to be associated with Black or African American hip hop culture.

24The respondents also called an expert witness, Dr. Heather Lotherington, who filed an expert report and testified at the hearing. Dr. Lotherington is currently a Professor of Multilingual Education in the Faculty of Education at York University. She was called to testify as to the etymology of the word "ghetto" and the meaning of the term "ghetto clothing".

25According to her evidence, while the word "ghetto" is understood to have originated in Italy in the early 17th century as referring to areas where Jewish people were confined, it is clear that by the 1960s, the term "ghetto" was being used to refer to inner city areas where minorities were congregating. In her report, Dr. Lotherington notes that by this time, this usage of the term "ghetto" applied primarily in the American context and referred not only to areas inhabited by immigrant populations, but also by people socially constituted into racial groups, including though not exclusively the association of American Blacks and ghettos.

26Dr. Lotherington testified that by the 1980s, the word "ghetto" had morphed from its use as a noun to describe a place or location to use as an adjective to modify other terms. For example, Dr. Lotherington cited the phrase "ghetto blaster", which was used to describe a portable music player on which popular music, including Black music, was being played. On cross-examination, Dr. Lotherington acknowledged that her source materials defined "ghetto blaster" as "a large portable stereo radio (and cassette player), esp. one on which (black) popular music is played loudly".

27Dr. Lotherington states that more recently, "ghetto" has become commonly used as an adjective to describe urban style, including terms such as "ghetto style" which refers to hip hop influenced urban clothing, "ghetto chic" which combines a French descriptor of haute couture with urban street style, and "ghetto fabulous" where the word "ghetto" is technically functioning as an adverb. She concludes that the term "ghetto clothing" denotes urban style, which may include a hip hop vibe, but no longer encodes forcible geographic enclosure or particularized ethnic vilification. In her evidence in chief, Dr. Lotherington testified that the use of terms like "ghetto chic" and "ghetto fabulous" suggest that this particular kind of urban style is now seen as trendy or positive.

28In response to my questioning, Dr. Lotherington acknowledged that "ghetto" as an adjective relates very much to African American culture, hip hop culture, and music from the Black community. This to me is obvious from the internet search materials submitted by respondents' counsel, from Dr. Lotherington's report and source materials in evidence before me, and from the common understanding of this term in popular usage.

My analysis and findings

29I do not doubt that Mr. Jaipaul was using the term "ghetto" on April 30, 2010 to refer to the applicant's manner of dress on that day. I also do not doubt that Mr. Jaipaul's choice of this term was influenced by his family's common usage of this term to refer to an urban style of clothing. I further do not doubt that Mr. Jaipaul was not intending to be racially discriminatory in the usage of this term, but rather was using this term to signify that he did not believe that the applicant was appropriately attired for work. However, it is clear from the jurisprudence that intent is not required to establish discrimination; rather the focus is on the impact or effect of the conduct at issue: see Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536 at para. 14.

30In my view and based on the evidence before me, there is a strong association between the usage of the term "ghetto" and the Black community, which has its origins in the usually impoverished inner city areas of major American cities that are populated by African Americans. This is clear from Dr. Lotherington's evidence and source materials. This usage of the term "ghetto" is negative and derogatory and is used to denote a place that is run-down, undesirable or shabby. As noted in the source material from Wikipedia relied upon by Dr. Lotherington, what has occurred since this association was established in the 1960s is an effort by the African American community and particularly the hip hop scene to re-claim this derogatory term and begin using it in a more positive sense that transcends its origins. Hence the relatively recent popularization of terms such as "ghetto fabulous" and "ghetto chic".

31This effort is akin to the effort by the lesbian and gay community to re-claim the word "queer" and by the Black community to re-claim the n-word. However, whether or not it is acceptable to use such re-claimed terms in reference to a member of the targeted community is very much a function of not only the context in which the term is used but also by whom the term is used. For example, if the word "queer" or the n-word is used to refer to a member of the targeted community by a person who is not a part of that community and with whom there is no tacit understanding as to the acceptability of the use of such terms, these words are still powerful derogatory terms that cause offence in spite of the targeted groups' efforts to re-claim these words.

32In the same way, in my view, the use of the term "ghetto" by a member of management in the workplace to refer to the attire of an African Canadian male carries with it a powerful derogatory message that is associated with race and colour. While Mr. Jaipaul himself may identify as Black, unlike with his family there was no tacit understanding between Mr. Jaipaul and the applicant as to the acceptability of the usage of this term. The fact that Mr. Jaipaul himself is a member of a racialized group does not insulate him from potential liability under the Code.

33Further, while the terms "ghetto fabulous" and "ghetto chic" may represent recent efforts to sanitize the word "ghetto" of its negative connotation when used in relation to clothing and to give this term a more positive spin, Mr. Jaipaul was not using the term "ghetto" to compliment the applicant on his urban style of dress; he was using this term in a negative or critical manner to convey that he considered the applicant's manner of dress to be inappropriate for the workplace.

34I accept that when Mr. Jaipaul first used the term "ghetto" in reference to the applicant's manner of dress, he was not speaking directly to the applicant and did not intend the applicant to hear his comment. I also am prepared to accept that, at that point and based upon the tacit understanding within his family regarding the usage of this term, Mr. Jaipaul may not have understood that using this term would be unwelcome or offensive to the applicant. However, once he was told by the applicant to "watch his tongue" in response to the first comment, Mr. Jaipaul clearly understood that the applicant had taken offence to what he had said. And yet he continued to repeat essentially the same comment that he now knew to be offensive to the applicant, but this time made the comment directly to the applicant. And then, after being told again to watch his tongue, Mr. Jaipaul made the comment about the applicant looking like he was from "ghettoville". In my view, that is clearly a derogatory comment which Mr. Jaipaul knew or ought reasonably have known to be unwelcome to the applicant, and which carried with it an association to the applicant's race and colour.

35I find that there is no proper basis in the evidence to conclude that this issue was resolved as a result of the meeting on April 30, 2010. While Mr. Jaipaul may have apologized for any "misunderstanding", it is clear from Mr. Jaipaul's evidence that this was not a true apology or recognition as to the inappropriateness of his comments or their impact on the applicant. Further, on the basis of the applicant's evidence, the applicant himself told the Vice-President, Compliance at the end of this meeting that he had not yet determined how he was going to proceed with the matter.

36While the offending comments were made within a very short time span on the morning of one particular day, I find that these comments were sufficient to poison the applicant's work environment based on the following factors. First, the comments were made in a public setting in the workplace where they were capable of being heard and were in fact heard by the applicant's co-workers. Second, Mr. Jaipaul repeated the offending comments at least two times after he knew that the comments were offensive and unwelcome to the applicant. Third, Mr. Jaipaul's position with TCR as a very senior manager served to increase the impact and effect of the comments on the applicant. Fourth, based on the applicant's evidence, which is uncontradicted and which I accept, these comments became the source of jokes and other commentary by his co-workers, which changed how he felt about reporting for work and his desire to spend time with his co-workers on breaks and lunches.

37As a result, I find that the comments made by Mr. Jaipaul on the morning of April 30, 2010 created a poisoned work environment for the applicant because of his race and colour, contrary to s. 5(1) of the Code.

38Pursuant to s. 46.3 of the Code, I find that TCR is liable for the actions of Mr. Jaipaul at its employee.

Remedy

39The applicant seeks an award of compensation for injury to dignity, feelings and self-respect in the amount of $20,000. While in the Application the applicant asserted a claim for lost income based upon diminution of his ability to earn commission due to the impact of the comments, there is no evidence before me to substantiate such a claim and it was not pursued in argument before me.

40Applicant's counsel put forward a series of decisions involving police services and racial profiling or discrimination as justifying the quantum sought, including Nassiah v. Peel Police Services Board, (2007) HRTO 14 ($20,000), Phipps v. Toronto Police Services Board, 2009 HRTO 1604 ($10,000) and Abbott v. Toronto Police Services Board, 2010 HRTO 1314 ($5,000). In my view, cases of racial profiling or discrimination by police officers are not analogous to the situation in the instant case where a person has been subjected to a single incident of comments in the workplace context. In my view, the impact on a racialized community member of racial profiling or discrimination by a police officer who is supposed to be serving the public interest is significantly more severe.

41In my view, the more analogous line of cases arises from situations where a single comment or a few comments within a short period of time in the employment context have been found to be in violation of the Code. For example, in Romano v. 1577118 Ontario Inc., 2008 HRTO 9, an employer made a vulgar sexual comment to an employee when she came to pick up her final pay and was found liable to pay her $1,000 as compensation for injury to dignity, feelings and self-respect. In Baisa v. Skills for Change, 2010 HRTO 2161, the applicant was awarded $1,500 where she had been subjected to two vulgar sexualized comments by a co-worker.

42In the instant case, it is my view that a somewhat higher quantum of compensation is in order, in light of the following circumstances: the fact that the comments came from a very senior manager at TCR, rather than from a co-worker as in Baisa; the very public manner in which the comments were made, such that they were heard by a number of the applicant's co-workers; and the continuing impact on the applicant in the workplace as a result of co-worker jokes and remarks based upon the offending comments, unlike in Romano where the comment was made at the very end of the employment relationship. I also have taken into account the fact that TCR management and Mr. Jaipaul himself did not take sufficient steps to address or resolve the issue when it was raised by the applicant. While Mr. Jaipaul testified that he apologized for the comments, I have found that his first apology was in rote form and an attempt simply to defuse the conflict and his second apology failed to recognize that he had said anything inappropriate. Further, there is no evidence that any disciplinary or corrective action was taken by TCR in relation to Mr. Jaipaul's comments.

43At the same time, I note that there is no evidence before me of medical, health or psychological issues arising from this incident, which is a significant factor considered by this Tribunal when making an award of compensation at the higher end of the scale.

44In all of these circumstances, it is my view that an award of $2,500 is appropriate compensation for injury to the applicant's dignity, feelings and self-respect, consistent with this Tribunal's caselaw.

45Finally, the applicant has requested that I order a public interest remedy pursuant to s. 45.2(1).3 of the Code. In his Application, the applicant sought a remedy requiring the respondent company to implement policies to assist in ensuring that its activities are carried out in compliance with the Code. Based upon the Response filed with the Tribunal and the evidence at the hearing, it is clear that the respondent company already has such a policy in place. The evidence also indicates that the respondent company is a federal contractor subject to the federal government's employment equity program, which requires that such policies be in place and that discriminatory barriers and practices be removed. In my view, no purpose would be served in requiring the respondent company to develop or implement further policies.

46The applicant requests that, even if no further policy is required, some remedy needs to be imposed regarding the personal respondent's conduct. In my view, in the specific circumstances of this case, no further order is necessary beyond the finding made in this Decision and the compensation awarded. This was an isolated incident. There is no evidence before me to support any pattern or practice of racial discrimination by Mr. Jaipaul or other members of TCR management, nor is there any evidence of him or other members of TCR management making comments on other occasions which have a racial association. I have carefully considered whether it would be appropriate to order anti-racism training in this case, but I do not believe that such an order is justified in the circumstances.

ORDER

47For all of the foregoing reasons, I hereby make the following order:

a. The respondents shall pay to the applicant the sum of $2,500 without deduction as compensation for injury to dignity, feelings and self-respect;

b. Post-judgment interest on this amount shall accrue at the rate of 3.0% per annum on any amount unpaid 30 days from the date of this Decision.