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“Never Again” – Discrimination in the Workplace

Last week, we observed Yom HaShoah, or Holocaust Remembrance Day. One of the key messages that is expressed, year after year, is “never again”. The holocaust, widely recognized as one of the greatest atrocities in human history, should serve as a reminder of what mankind is unfortunately capable of: the systematic exclusion, dehumanization, and murder of millions of people based upon, in that case, their religion.

While the hope has been that such a thing would never happen again, the decades since the end of the holocaust have seen other genocides, ongoing racism, and continued discrimination. While the holocaust and other genocidal incidents were horrors of immense proportions, they had to begin somewhere. They would not have been able to take place if the general population did not allow it. As the Supreme Court of Canada recognized, in words echoed by international criminal tribunals, the Holocaust did not begin in the gas chambers – it began with words

So what does this have to do with employment law in Canada? Simply that while we have human rights legislation that prohibits discrimination and harassment on the basis of a variety of grounds, including religion, and despite the fact that most people know that such behavior is wrong, we continue to hear about situations where individuals have been either discriminated against or harassed due to their background. Ironically, the news over the last few days has included allegations that the owner of the Los Angeles Clippers basketball team made comments to his then-girlfriend about not bringing her black friends to games.

Closer to home, in Islam v. Big Inc., a 2013 Human Rights case in Ontario, three Bengali-speaking Muslim restaurant kitchen employees in Toronto were mocked and reprimanded for speaking Bengali, subjected to comments about “cleaning Bengali sh-t from the kitchen,”, forced to eat pork in violation of their religious beliefs and then forced to break their Ramadan fast. They were ultimately fired, and were found by the Human Rights Tribunal of Ontario to have been harassed in violation of the Ontario’s Human Rights Code. The Tribunal ordered the respondent to pay to the three applicants close to $28,000, plus interest, to compensate for loss of income. In addition, the Tribunal awarded damages to the three employees, in the amounts of $37,000, $22,000 and $12,000 respectively, to compensate for violations of the inherent right to be free from discrimination, and for injury to dignity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimination.

Unfortunately, while we have laws in place to protect individuals from such conduct, the penalties do not necessarily reflect the seriousness of such conduct. In a “typical” discrimination case, the victim is likely to be awarded compensation for lost wages, along with general damages for injury to dignity. The latter are likely to be somewhere in the $10,000 to $15,000 range, though the amounts have increased slightly in rent years. The amounts, though, do not suggest that as a society, we find such conduct to be reprehensible. Rather, it seems to be more along the lines of a cost of doing business.

There are many situations where discrimination is inferred due to unfortunate circumstances or timing. I am not suggesting that such situations should result in massive damages awards. However, where it is found that an employer deliberately discriminated against or harassed an individual on the basis of their religion, or other protected grounds, then it would send a stronger message if they were forced to pay a substantial amount of money, rather than a fairly nominal penalty.

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