“Too pretty to drive a forklift”: Employee awarded considerable damages for workplace harassment and discrimination
In a recent decision from Windsor, the Human Rights Tribunal of Ontario ordered an employer to pay almost $60,000 in damages for the way in which a female employee was repeatedly harassed, insulted and humiliated by senior management.
The employee, Ms. Tin Trinh, eventually resigned in response to the company's toxic workplace and brought an application to the Human Rights Tribunal seeking damages for discrimination on the basis of disability, race, place of origin, sex, family status and marital status.
Ms. Trinh's Pregnancy and Requested Accommodation
Tin Trinh began work with CS Windsor as a production technology specialist on January 30, 2012. As Ms. Trinh speaks Vietnamese, she was asked to assist Vietnamese expatriate employees by translating for them. In May 2012, Mr. Trinh was promoted to the position of planning team manager. In this role, she was regularly required to work 16 hours a day, 7 days a week.
In July 2012, Ms. Trinh experienced complications with her pregnancy and was advised by her physician to take off 10 days from work. Due to the early stage of her pregnancy, Ms. Trinh had not yet told anyone at work that she was in fact pregnant.
When Ms. Trinh approached her boss, Mr. Shin, with the doctor's note stating that she required 10 days of work, Mr. Shin asked for a reason to grant the time off. Ms. Trinh responded that her doctor had advised that the time off was necessary, but could not say anymore. Mr. Shin told Ms. Trinh that he was very disappointed in her and that she was "not like other Vietnamese."
As her pregnancy, progressed Ms. Trinh experienced severe joint pain. As such, in November 2012, the employer received a note from Ms. Trinh's obstetrician requiring that Ms. Trinh only work half-days. Mr. Shin was displeased with this request and told Ms. Trinh that "you know you will get fired if you go half-day."
Out of fear of losing her job, Ms. Trinh continued to work long hours and suffered significant pain and fatigue as a result. In early December, as a result of her ongoing pregnancy complications, Ms. Trinh was forced to leave the workplace on sick leave.
Ms. Trinh Returns From Parental Leave
Ms. Trinh returned from maternity leave in February 2014, and resumed her role as planning team manager. The following month Ms Trinh was approached by Mr. Kim, the company's Production Director. Mr. Kim told Ms. Trinh that unless she had in place a "perfect plan" for her team within a month, she should "stay home with her son."
Later the same month, Ms. Trinh attended a production meeting with Mr. Kim and other staff. At the meeting, Mr. Kim became upset as the facility had not met monthly targets. He demanded an explanation from Ms. Trinh, and then responded to her explanation by publicly calling her a "stupid Vietnamese woman."
In October 2014, Ms. Trinh gave notice of her intention to resign the following month. Ms. Trinh made this decision as she was tired of being yelled at and insulted, and also because the company repeatedly refused to offer her any wage increase or bonus - despite providing both to her colleagues. Mr. Kim learned that Ms. Trinh intended to resign and asked her to stay on. Ms. Trinh said she would consider staying in a 'weekend complete position'. This position required the supervisor in this role to drive a forklift. Mr. Kim refused this suggestion, telling Ms. Trinh, "you're too pretty to drive a forklift."
The Tribunal's Award
The hearing in this case lasted six days, and included the evidence of seven witnesses. The Adjudicator found Ms. Trinh to be a credible witness. As such, she determined that the employer failed to accommodate Ms. Trinh's reasonable requests for accommodation of both her pregnancy and disability, as defined under the Human Rights Code. The Adjudicator further found that the company's senior management made vexatious and demeaning comments to Ms. Trinh based on her sex and ethnic origin, which amounted to harassment and a poisoned work environment.
The Tribunal awarded:
- $25,000 for injury to dignity, feelings and self-respect;
- $16,399.29 for unpaid bonuses and raises which were denied as the result f discrimination; and
- $18,475.75 for lost earnings as a result of discrimination and Ms. Trinh's forced resignation.
The Company was also required to review its Human Rights policy and provide training to its managerial staff.
Lessons for Employers
Employers are only as good as the culture they create. While the majority of Ontario workplaces are accommodating and inclusive, sometimes things go wrong. As such, it is important for employers to take proactive steps to limit the likelihood of events such as those which happened to Ms. Trinh.
Best practice for employers is to provide regular and ongoing training to management and HR personnel. Through this, employers can help ensure that requests for accommodation are addressed respectfully and reasonably. Part of this training may also include formalizing policy and process to guide staff in raising, and responding to, accommodation requests.
It is harder for employers to manage ‘rogue acts’ of employees, which may include inappropriate or offensive comments. In order to limit this type of behaviour, however, employers need to set organizational culture and lead from the front. Employers should not be afraid to performance manage or discipline those employees that fail to maintain expected standards of professionalism in the workplace. Proactive management in this regard makes clear to all staff the types of behaviour that will, and will not, be tolerated.
In addition, employers should keep open lines of communication with staff. Encourage staff to raise any concerns they may have, and provide a mechanism to promptly address any such complaints.
This article was originally published on September 15, 2017 at First Reference Talks.
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca
