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	Discrimination in the Workplace: An Employer's Obligations
	by Bernard LeBlanc
	June 2005 - Vol 6 No 9

	While this may surprise some, overt discrimination, including racial discrimination, still exists in many workplaces. Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (Div. Ct.) is another case in which an employer was held liable for discrimination in the workplace as a result of a complaint made to the Ontario Human Rights Commission. At a hearing before the Ontario Human Rights Tribunal, the Tribunal found that the environment in which the complainant, Smith, worked from August 1992 to August 1993 in a junior position, and from August 1993 to December 1995 as a supervisior, was poisoned by racism. This case was particularly troublesome because it was common ground that the manager to whom Smith reported (Neal) displayed a racist attitude towards Smith. Moreover, the principal of the company knew that there were difficulties in the relationship between Neal and Smith and that Smith had reported racial comments. Smith was dismissed allegedly for one incident involving a refusal to assist a junior employee serving a customer. The employer did not offer Smith an opportunity to defend himself. Indeed, Smith’s manager advised against dismissing Smith. In an effort to essentially take the easy way out, the employer claimed that Smith was terminated because of lack of work. However, a white employee was transferred into Smith’s former position. Smith later received a letter from the employer indicating that he was terminated for poor performance. Following a hearing, the Human Rights Tribunal found that while the employment environment was poisoned by racism, race was not a factor in the termination. The Divisional Court held that motive is irrelevant. The Divisional Court followed extensive case law which stands for the proposition that it is unnecessary to prove that someone intends to discriminate against someone in order to establish “discrimination”. Instead, “adverse effect” discrimination is just as actionable as intentional discrimination. The Court held that the employer’s failure to act on Smith’s complaints was at least reckless disregard for his rights to be free of a poisoned environment. The Human Rights Tribunal therefore erred in basing its decision on motive, and concluding that race was not a factor in Smith’s dismissal. The Divisional Court also observed that it is usually almost impossible to prove that employment is terminated because of race: “It is precisely for this reason that the case law requires the Tribunal to look at all the surrounding circumstances in coming to a conclusion that race was or was not a factor in the dismissal, and does not require the Tribunal to find that the dismissal was racially motivated.” The fact is that in this case, race was a factor in Smith’s determination with the result that Smith was entitled to a remedy under the Ontario Human Rights Code. The real significance of this decision is that, whenever an employer becomes aware of tension in the workplace relating to any ground of discrimination, the employer must take decisive action by, first, investigating these matters and, if appropriate, disciplining any employees involved. Obviously, discrimination of any form has no place in any workplace and this decision reaffirms all employers’ obligations to take whatever steps are necessary to ensure that employees are free from any form of discrimination, either by the employer or by other employees. [Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com. Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome. ]



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	Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.