In Brooks v. Total Credit Recovery Limited., the Ontario Human Rights Tribunal determined that the comments made to an employee regarding his attire on a “casual Friday” were not only discriminatory on the basis of race and colour, but created a toxic work environment in breach of the Human Rights Code.
On April 30, 2010, the employee, Harold Brooks (“Mr. Brooks”) who is an African Canadian male from the East Coast of Canada, attended work dressed in an Adidas soccer jersey bearing a Kenyan team crest, black loose fitted jeans and Nike running shoes. Later that morning, Mr. Brooks was observed by the Director of Operations, Ted Jaipaul (“Mr. Jaipaul”), who is Black and originally from Guyana. Mr. Jaipaul commented to Mr. Brooks’ supervisor, who is also an African Canadian male, that Mr. Brooks’ looked “ghetto” based on his appearance that day. This comment was overheard by Mr. Brooks who responded to the comment by saying “Watch your tongue.” Despite Mr. Brooks’ warning, Mr. Jaipaul turned to Mr. Brooks and directed the following comment to him, “Look at you. You’re ghetto.” Again Mr. Brooks told Mr. Jaipaul to “watch his tongue”, however Mr. Jaipaul continued in his commentary, stating to another employee who was close by that Mr. Brooks “looks like he’s from ghettoville.” Mr. Brooks became very upset and asked Mr. Jaipaul to apologize and to go with him to Human Resources to discuss the matter. Mr. Jaipaul refused to apologize and instructed Mr. Brooks’ supervisor to send Mr. Brooks home for the day. Mr. Brooks left the building and sat in his car, later returning to the building to meet with Human Resources along with Mr. Jaipaul and the Vice-President, Compliance. During this meeting Mr. Jaipaul apologized to Mr. Jaipaul twice in an effort to diffuse the situation. After the meeting ended, Mr. Brooks returned to work. Unfortunately, after the incident, Mr. Brooks’ co-workers who had overheard the “ghetto” comments made by Mr. Jaipaul and his reaction these comments, began to tease and joke around with him, saying things like “Hey Brooks, that’s ghetto”. These comments by his co-workers over the span of a few months made Mr. Brooks feel disrespected as he felt the comments were related to his race and colour. On September 7, 2010, Mr. Brooks filed an Application to the Human Rights Tribunal against Mr. Jaipaul and his employer, Total Credit Recovery (“TCR”), seeking damages for injury to dignity, feelings and self-respect in the amount of $20,000.00 and loss of income, among other things.
The Tribunal considered the evidence presented, which included the evidence of an expert witness, Dr. Heather Lotherington, a Professor of Multilingual Education in the Faculty of Education at York University (“Dr. Lotherington”). Dr. Lotherington provided evidence regarding the origins of the word “ghetto” and the meaning of the term “ghetto clothing”. Dr. Lotherington’s evidence showed that although the term “ghetto” has now become a common adjective to describe urban style, which is viewed as trendy or positive, the term “ghetto” has its origins in the “usually impoverished inner city areas of major American cities that are populated by African Americans” and relates directly to African American culture and the Black community. The Adjudicator noted that, “this usage of the term ‘ghetto’ is negative and derogatory and is used to denote a place that is run-down, undesirable or shabby.” On this basis the Adjudicator determined that Mr. Jaipaul’s comments were derogatory, relating to Mr. Brooks’ race and colour, thereby being discriminatory. The Adjudicator also determined that Mr. Jaipaul knew or ought to have known that his comments would be unwelcome by Mr. Brooks based on Mr. Brook’s request that Mr. Jaipaul “hold his tongue” when the first comment by Mr. Jaipaul to the supervisor was overheard by Mr. Brooks. Although Mr. Jaipaul knew that Mr. Brooks had been offended by the first comment, Mr. Jaipaul continued to repeat the same sentiments to Mr. Brooks directly. Regarding Mr. Jaipaul’s two apologies to Mr. Brooks, the Adjudicator determined that they were not true apologies as Mr. Jaipaul did not recognize the inappropriateness of his comments or their impact on Mr. Brooks. The Adjudicator concluded that the comments made by Mr. Jaipaul on that day were sufficient to create a poisoned work environment due to his race and colour based on the following: (1) the comments were made in a public setting where they were overheard by Mr. Brooks’ co-workers; (2) Mr. Jaipaul repeated the offending comments at least two times after he realized that they were offensive and unwelcome by Mr. Brooks; (3) Mr. Jaipaul was a senior manager which increased the impact and effect of the comments on Mr. Brooks; (4) the comments resulted in Mr. Brooks becoming the subject of jokes and other commentary by his co-workers which negatively impacted how Mr. Brooks felt about attending work and spending time with his co-workers. As a result of the breach of s. 5(1) of the Human Rights Code, the Tribunal awarded Mr. Brooks damages of $2,500.00 for injury to dignity, feelings and self-respect plus post-judgment interest, with TCR being vicariously liable for the actions of Mr. Jaipaul.
Impact of Decision on Employers
This case demonstrates the importance of implementing sensitivity training as well as promoting cultural and historical awareness in the workplace. Often words that are rooted in cultural and historic tradition become part of every day vocabulary with an updated meaning. Although the words may not be spoken with any inappropriate intent, if the impact or effect of these words is discriminatory, then a breach of human rights legislation may occur resulting in liability for the employer. It is imperative that employers implement proper policies and procedures to address harassment and discrimination in the workplace and ensure that sufficient training is provided to all employees, including senior management who should be expected to set a positive example in the workplace. Experienced Employment Law lawyers can assist employers in the creation and implementation of these types of policies, as well as to provide advice on a case by case basis when incidents arise in the workplace.
Impact of Decision on Employees
Employees who are offended by comments directed at them or overheard in the workplace should inform employers of their concern so that sufficient steps can be taken by the employer to resolve any issues before they escalate. A toxic work environment may result if the offending comments are made in a public setting where they are overheard by others and if these comments become the source of jokes or other unwanted commentary by co-workers. Senior employees will likely be held to a higher standard as they are expected to set a positive example for others and employers may be held liable for the inappropriate actions of their employees. Employees should be aware that they have certain protections under Human Rights legislation and should consult with an Employment Law lawyer if an incident arises at work that makes them feel that their rights may have been violated. If so, there are various remedies that can be pursued through the Human Rights Tribunal as well as the Court system.
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See also, “‘Ghetto’ comment discriminatory, created toxic work environment” published in Canadian Employment Law Today.