by Daniel Lubin and Daniel Chodos
The consequences of not conducting investigations.
What do you do when an employee complains of discrimination – but you don’t believe him?
This scenario played out recently at the Ontario Human Rights Tribunal when Aldeen Morgan, a black man who worked for Herman Miller Canada as a furniture installation scheduler, felt that he was being treated differently due to his skin colour.
In Morgan v. Herman Miller Canada Inc., 2013 HRTO 650, Morgan claimed that Herman Miller discriminated against him by assigning him demeaning tasks outside of his job description such as cleaning up garbage and moving furniture, ordering him to work outside regular business hours, putting him on probation without a justifiable reason and sending an insensitive email about a group of mostly-black contractors with whom he worked. He felt this conduct was racially motivated.
Morgan increasingly grew wary of the way he was treated. He complained to numerous members of Herman Miller’s management team, including its human resources manager and his direct manager, claiming he was the victim of discrimination, commenting on one occasion that he felt like he had to put on “white gloves and a mask.” Many of Morgan’s complaints were directed towards the president of the company, as Morgan felt that the president’s cold disposition towards him set the tone for how others felt they could act towards him. In fact, at the very moment that Morgan was complaining to his manager about how the president treated him, he was summoned by the president to fetch a box from the trunk of his car in preparation for a party the office was having later that night.
Morgan had enough and walked into a director’s office and complained that this was discrimination, that he thought it was serious enough to sue the company and that he felt he was being treated like a “black slave”.
The director took down Morgan’s complaint in writing and sent the details to Herman Miller’s HR team and the president.
It does not matter whether an employer perceives a human rights complaint to have no merit.
One month later, Morgan was fired for his alleged role in spreading a rumour that the company would be sold. During the intervening month, Herman Miller did nothing to investigate Morgan’s concerns that he was treated adversely because he was black and no one from human resources or the management team took any steps to speak to Morgan about his concerns.
Figuring that his termination was in reprisal for his complaint, Morgan launched a significant human rights application against the company and its president. He claimed they schemed to terminate his employment because of his complaints and that they accused him of misconduct to create a subtext to terminate his employment without it looking related to his complaint.
At the recent human rights trial, Morgan was unable to show that Herman Miller’s conduct prior to his discrimination complaint amounted to a violation of the Ontario Human Rights Code. In fact, the Tribunal ultimately shot down every allegation linking his treatment in the workplace to his race. However, Herman Miller was still guilty of discrimination. Why?
The Tribunal found that Herman Miller terminated Morgan because he complained (even though those complaints did not actually have any real merit) and that the failure to investigate his concerns was a “spectacular oversight.”
It held Herman Miller liable to Morgan for lost wages for a period of 14 months (despite only a three year tenure), as well as $15,000.00 as compensation for injury to dignity, feelings and self-respect. Herman Miller was also ordered to retain an expert to review its human rights policies and train its managerial and human resource employees.
What becomes clear through reading the decision is that, had Herman Miller not fumbled the way it dealt with Morgan’s complaint, it would not have been liable for discrimination. In the end, the judge found that Morgan was not adversely treated throughout his job but he legitimately thought that he was. After he complained, had Herman Miller investigated and ultimately determined that there was no merit to his concerns (as the Tribunal did), he would not have been able to seek damages. Instead, Herman Miller came up with a plan to fire Morgan for no good reason to rid itself of an employee who complained, which was the foundation for a significant award of damages that could have been avoided.
The mistakes made by the employer in the Morgan case provides a useful guide for companies faced with employees raising human rights allegations:
• It does not matter whether an employer perceives a human rights complaint to have no merit. There is a legal duty to fully and fairly investigate that complaint before deciding what to do next.
• There must be no connection between an employee’s honest complaint (even if unfounded) and subsequent discipline. The right to complaint without reprisal is an important concept that is widely supported by human rights tribunals.
• Ensure all managerial employees are well-trained on their obligations under human rights legislation, including the obligation to initiate an investigation, even if they have no human resource function.
• It does not matter whether a human rights complaint is made orally or in writing; either way, it triggers an employer’s obligation to investigate it. Similarly, a complainant does not actually have to use the words “discrimination” or “human rights” to trigger an investigation. Employers need to examine the facts and determine whether the complaint is based on one of the various human rights grounds.
Daniel Lublin and Daniel Chodos are employment lawyers at Whitten & Lublin, assisting both employees and employers with workplace legal disputes. Lublin was counsel to Mr. Morgan. They can be reached at www.toronto-employmentlawyer.com