Human Rights Tribunal Awards Substantial Damages for Workplace Harassment and Discrimination

 

In Trinh v. CS Wind Canada Inc. the employer, CS Wind Canada Inc., was ordered to pay its former employee, Tin Trinh, nearly $60,000 in damages after the Human Rights Tribunal of Ontario found that Trinh had no choice but to resign due to discrimination, repeated harassment and failure to accommodate by senior management.

In January 2012, Trinh was hired by CS Wind, a manufacturer of wind turbine towers, as a production technology specialist. She was soon promoted to a management position on the planning team.

Trinh worked very long hours, seven days a week.

In addition to her regular duties, Trinh, a native Vietnamese speaker, was expected to assist the company’s other Vietnamese employees as a translator. This added significantly to her already heavy workload.

In July 2012, Trinh – then in the early stages of pregnancy — approached her boss with a note from her physician, requesting ten days off work. Her superior was not receptive. He said that he was very disappointed in her and that she was “not like other Vietnamese”. A few months later, again on the advice of her physician, Trinh sought to reduce her hours. Her boss told her that she would be fired if she worked half-days.

Out of fear of losing her job, Trinh continued to work long hours, suffering significant pain and fatigue. In early December of 2012, as a result of ongoing pregnancy complications, Trinh went on sick leave.

When she returned to work following maternity leave in February 2014, Trinh was subject to intimidation and harassment, including being referred to as a “stupid Vietnamese woman” at a staff meeting.

In October 2014, Trinh gave notice of her intention to resign the following month, citing both the toxic work environment and the company’s refusal to offer her any wage increase or bonus, despite providing both to her colleagues.

When asked to stay on, Trinh said that she would consider a “weekend complete position”, a role which would require her to drive a forklift. In a final insult, her superior refused Trinh’s suggestion, saying “you’re too pretty to drive a forklift.”

Trinh brought an application before the HRTO seeking damages for discrimination on the basis of disability, race, place of origin, sex, family status and marital status, contrary to the Human Rights Code, R.S.O. 1990, c. H.19.

Trinh claimed specifically that her employer discriminated against her when it failed to accommodate her disability and pregnancy-related need to reduce her working hours to half-days. She also claimed that she was discriminated against when she was denied bonuses and wage increases, and the opportunity to attend a managers’ workshop in 2013 when she was on maternity leave. Trinh further alleged that she experienced discrimination and harassment by the company’s management and executive staff on the basis of her ethnic origin, sex, family status, citizenship and marital status, and that this conduct created a poisoned work environment that left her with no option but to resign. She claimed that as a result of her resignation, she was denied a further bonus for work performed in 2014 and experienced wage losses.

At the conclusion of a six-day hearing, the adjudicator found that Trinh met her onus of establishing a violation of her rights under the Code.

The Tribunal held that CS Wind failed to accommodate Trinh’s reasonable requests for accommodation of both her pregnancy and disability, as defined under the Code. The Tribunal further held that the company’s senior management made vexatious and demeaning comments to Trinh based on her sex and ethnic origin, which amounted to harassment and a poisoned work environment.

Trinh was awarded nearly $60,000, including $25,000 for injury to dignity, feelings and self-respect. CS Wind was also ordered to review its human rights policy and provide training to its’ managerial and executive employees on their rights and obligations under the Code.

Lessons for Employers

Employers are responsible for creating and nurturing a respectful and inclusive work environment. Part of this task involves taking proactive steps to prevent the kind of conduct to which Trinh was subjected at CS Wind.

Employers should provide regular and ongoing training to management staff and human resources specialists so that requests for accommodation can be addressed respectfully. This training may include formalizing policy and processes and ensuring that these are disseminated to and understood by the appropriate staff members.

While it is difficult for employers to manage all of their employees’ conduct, they can discourage inappropriate or offensive comments by disciplining those employees who fail to maintain expected standards of professionalism in the workplace and by setting an example with their own good behaviour. Employers should also foster open communication with staff, so that employees feel safe to raise any concerns.

Employers not only have a legal obligation to ensure that their workplaces are free of discrimination and harassment; it is also in their best interest to do so. Employers who fail to protect their employees’ human rights risk decreased productivity, poor morale, absenteeism and, ultimately, losing quality team members.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.