Nicholas von Bloedau v. Transcom Worldwide (North America) Incorporated, 2014 HRTO 67

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicholas von Bloedau Applicant

-and-

Transcom Worldwide (North America) Incorporated Respondent

DECISION

Adjudicator: Eric Whist Date: January 16, 2014 Citation: 2014 HRTO 67 Indexed as: Von Bloedau v. Transcom Worldwide (North America) Incorporated

APPEARANCES

Nicholas von Bloedau, Applicant Self-represented

Transcom Worldwide (North America) Incorporated, Respondent Anne Ricci, Representative

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment on the basis of sex. The Application alleges that the applicant was subject to progressive discipline culminating in the termination of his employment because of complaints about his personal body odour. The Application alleges that these complaints were made by females who have different expectations of standards for what ideal body odour should be. The Application contends that the applicant, as a male employee, could not and should not be required to live up to these subjective standards and the respondent's willingness to act on these complaints constitutes discrimination.

2On September 11, 2013, the Tribunal issued, on its own initiative, a Case Assessment Direction directing that a summary hearing be held pursuant to Rule 19A of the Tribunal's Rules of Procedure. A summary hearing is held to determine whether an Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application, in whole or in part, will succeed.

3The summary hearing was held by teleconference on December 19, 2013. During the summary hearing, I heard from the applicant and the respondent's representative. The applicant also disclosed documents related to the progressive discipline he received, several articles about gender differences in detecting odours, and body odour and employment as well as documents from the Ontario Human Rights Commission describing the principles of discrimination and how they apply in the workplace.

DECISION

4For the reasons that follow I find that the Application has no reasonable prospect of success and accordingly, the Application is dismissed.

BACKGROUND

5The applicant worked for the respondent as a customer service agent from May 2010 until June 13, 2012, when his employment was terminated. The applicant's job was to respond to telephone and other enquiries from the public about the products of a consumer products company active in Canada. It appears that the applicant was one of 12-18 agents working on a team dedicated to providing services for this particular consumer products company. The applicant submits he was one of only two males on the team. It is a central contention of the applicant's that it was one or more of the women on this team who likely complained that she or they found his body odour offensive, an odour that the applicant maintained men would not find offensive or would not have complained about.

6These complaints gave rise to the applicant being progressively disciplined. Documents related to this progressive discipline during the period July 2010 to February 2012 were before me. There was no dispute about the accuracy of these documents.

7The documents show that the applicant was "coached" on July 29, 2010; was verbally warned on August 13, 2010; was issued a written warning on October 19, 2010; was given a one day suspension on December 15, 2010; was given a 3 day suspension on January 20, 2011; was issued a final written warning on September 23, 2011 (for a different personal hygiene issue) and was issued a further reminder of his final warning on February 2, 2012 (at which time the applicant was sent home for the day). According to the Application there was a further complaint about the applicant's body odour on June 11, 2012, which is what then led to the termination of the applicant's employment for cause on June 13, 2012.

8The documents indicate that the respondent's disciplinary actions were undertaken pursuant to the respondent's Code of Conduct which requires employees to conduct themselves in a professional manner at all times. The documents indicate that following complaints that were made during the period July 2010 to January 2011 the respondent communicated to the applicant in writing that it had received a concern regarding a personal body odour issue, that the respondent was aware that individuals have unique scents that may be caused by diet, hygiene or medical issues, that all employees were required to practice proper hygiene while in the workplace and if an odour was caused by a medical condition the respondent required documentation to support that the odour was related to a medical disability. The disciplinary documents also record the applicant's commitments in response to the complaints and the views of the applicant's team leader.

9I note that the various disciplinary documents record reasons for why the applicant believed he may have had body odour issues (for example, bicycling in extreme heat and lack of showers) and steps the applicant indicated he was prepared to take in response (for example, bringing a change of clothing to work and continuing to work hard to resolve his body odour issues). The documents record that the applicant's team leader was satisfied that the applicant was aware that proper personal hygiene was a part of a professional work place and that there was a need to ensure that the organization was presenting a professional image.

10The applicant did submit that while he felt some of the complaints about his having body odour may have been valid, particularly the initial complaints, he was not convinced that all of the complaints were valid. He stated that he felt that he took care of his hygiene for the most part. He submits that over time he felt was doing better and so was surprised when his body odour continued to be an apparent issue. He submits that he may have initially expressed a willingness to take corrective actions as part of the disciplinary process but that eventually he was just agreeing to requests to make changes in his behaviour not because he believed he continued to have body odour issues but because he was a co-operative and polite employee and he feared what might happen if he spoke out. He submits this willingness to co-operate is reflected in some of his commitments on the later disciplinary documents. Of note, the applicant did not argue or point to evidence that he was unable to reduce his body odour because of his gender.

11The applicant did not submit that any body odour that he might have had was as a result of a medical disability. In fact, he disclosed a doctor's letter dated July 5, 2012, that states that there was no medical reason for the applicant to have a body odour. This letter also states that the doctor, who is male, did not detect the applicant as having a body odour. The applicant submits this supports his contention that he did not have significant body odour or an odour that was objectionable to men.

12The applicant referred to a number of the articles he disclosed. He submits that according to an article issued by the American National Institute of Health entitled "Sex Differences and Reproductive Hormone Influences on Human Odour Perception" many studies have shown that women are more sensitive to smells than men, that accordingly women have a lower threshold to objectionable smells. He submits that there is a tendency for women to have a stronger perception of body odour and to be more likely to describe body odours as less pleasant. He submits that according to the authors of the article "Family Scents: Developmental Changes in the Perception of Kin Body Odour?" females appear to be more sensitive to body odours. The applicant submits, based on his understanding of these articles, that there is a tendency for women to have a stronger perception of body odour and ascribe body odour to men even when that might not be the case. He submits body odour may be perceived by women as less pleasant and that consequently women would be more likely to complain about such odour.

13He submits that he may have been held, as a sweaty male, to a different standard for body odour and referred to a disclosed article entitled "My Boss says I smell Bad" by Suzanne Lucas that suggests that while firing someone for smelling bad may be legal (in Florida) it may be sex discrimination against men if men are held to a different standard than women. The applicant submits that men might well not have noticed his body odour or complained about it.

14The respondent denies its actions were discriminatory. It submits that it acted reasonably in response to repeated employee complaints about the applicant's body odour. It submits that the applicant did not deny that he had body odour issues and did not argue he had medical reasons for this body odour. The respondent submits the applicant never challenged the progressive discipline he received under the respondent's review process nor did he raise an issue that he was being subject to sex discrimination. The respondent submits that the articles the applicant relies on are subjective and individually chosen by the applicant because he believes they support his case and views.

ANALYSIS

15Rule 19A reads:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

16In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 7-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

17In this case the issue is whether the applicant has evidence or can point to evidence that links the respondent's actions to his gender. The Tribunal does not have the power to deal with general allegations of unfair treatment. There must be an evidentiary basis beyond mere accusations or speculation for an applicant to succeed at a summary hearing.

18As noted, the applicant does not contend that his body odour is linked to a disability and that the respondent had a duty to accommodate a medical condition. He provided a doctor's letter that states that there are no medical reasons for the applicant to have a body odour. I also note that the respondent was alive to this issue given its written communication inviting the applicant to provide medical documentation if he was of the view that his alleged body odour was related to a medical condition. He did not do so. Accordingly, the only issue I am considering is whether the respondent's treatment of the applicant was related to his sex.

19The applicant did not argue or point to any evidence to indicate that women in his workplace were treated differently than he was, for example, that women were not subject to the requirement to maintain proper hygiene or were not subject to disciplinary procedures related to this requirement.

20Rather, the applicant principally argues that the respondent had a standard – a requirement for employees to maintain proper hygiene and non-offensive body odour – that may not have been intended to be discriminatory but nonetheless had an adverse and discriminatory effect on men. He submits that the standard was essentially based on what odour women considered appropriate and that this was discriminatory given women are unduly sensitive to smell and to the smell of men. He submits his smell, as a male, was not objectionable. He submits that men would not have complained about his smell. He submits the subsequent willingness of the respondent to act on complaints made by women about his body odour by subjecting him to progressive discipline was to enforce a standard for personal hygiene that discriminated against him as a male.

21The question of whether women are indeed more sensitive to odours than men is not evident based on the information before me. This issue was clearly disputed in the academic literature referred to in the articles that were provided by the applicant. It is also not clear from the materials cited by the applicant that there is any common understanding that women find body odours, in particular the smell of men, more objectionable than men do. However, even if I accept that women do have a greater sensitivity to smells and to the smell of men this does not necessarily render a complaint about the applicant's body odour made by a woman or women to be overstated, invalid or based on the complainant being female. The applicant's argument that a man would not have found his body odour objectionable or would not have complained about it is completely speculative. I do not find the report the applicant provided from his male doctor that indicates that on a date in July 2012 the applicant did not appear to have an offensive body odour to be evidence that would indicate that earlier complaints by female employees about the applicant's body odour were subjective and unfounded.

22I do not see that the way in which the respondent enforced its standard about body odour was discriminatory. It was appropriate, in my view, for the respondent to respond to complaints by employees, regardless of their gender, about the applicant's body odour and to engage with the applicant about these complaints. This is a reasonable step for an employer to take. I further note that the respondent provided, in my view, a constructive framework for such a discussion by communicating that it was aware that individuals have unique scents that may be caused by diet, hygiene or medical issues while noting that all employees were required to practice proper hygiene while in the workplace. It communicated that if an odour was caused by a medical condition the respondent required documentation to support that the odour was related to a medical disability.

23And, importantly for the purposes of the issues I need to decide, the information the applicant provided at the summary hearing and in the disciplinary documents he disclosed was that he recognized and accepted that he did have, at times, problems with personal hygiene and body odour. The information before me was that the applicant was himself aware that he needed, at times, to take further measures in order to improve his personal hygiene.

24At the hearing the applicant did attempt to qualify – and in my view, minimize – the degree to which he may have had a problem with body odour. He stated that he did not think all the complaints were valid. He stated that for the most part he took care of his hygiene, that it was not such an issue. He stated that he was not convinced that the complaints were always valid. He later stated that some of the complaints were not entirely accurate and that he felt the complaints were not always warranted. The fact that the applicant agreed that there was reasonable grounds for at least some of the complaints about his body odour undermines his argument that the respondent had a discriminatory standard around body odour based on women having a subjective and different sensitivity to odour including male odour and his further unsupported argument that males would not have found the nature of his odour objectionable. I find that the applicant has no reasonable prospect of showing that the standard for personal hygiene used by the respondent, the willingness of the respondent to investigate complaints about the applicant's hygiene and the subsequent discipline that was issued to the applicant was related to his gender rather to his own specific personal hygiene choices.

25Whether the level of discipline handed out to the applicant was fair or not is not an issue for the Tribunal to decide. As noted earlier the Tribunal also does not have the power to deal with general allegations of unfair treatment, only discriminatory treatment under the Code.

26During the summary hearing the applicant raised an issue that was referenced in his Application but as an effect of his alleged discriminatory treatment rather than as an act of discrimination in itself. He submits that he was one of six applicants who applied for a position as an Account Co-ordinator's position in February 2012 only to be told that he was ineligible because he had been suspended within the last year. He submits this was not true stating that he had last been suspended in January 2011. He submits this determination that he was ineligible was "potentially" done to keep him, as the only male applicant, out of the job competition.

27The applicant is speculating, in my view, when he states that the treatment he received in relation to the job competition was potentially done to keep him out of a job competition. The onus on the applicant in a summary hearing is higher than simply establishing that something adverse happened to him and that he is male. He must point to evidence which would be reasonably available to him which would enable the Tribunal to draw the inference that the applicant was treated by the respondent in an adverse or differential manner because he was a male. In my view the applicant has not done so.

28I find that this Application has no reasonable prospect of success because there is no evidence which may be available to the applicant which would tend to establish a violation of the Code.

29The Application is dismissed.