BC Human Rights Tribunal cautions that even subtle comments can constitute discrimination in a workplace

A recent case from the British Columbia Human Rights Tribunal provides an important warning to employers that even seemingly innocent comments can constitute workplace discrimination. In The Sales Associate v. Aurora Biomed Inc. and others, 2021 BCHRT 5 the British Columbia Human Rights Tribunal ruled in favour of a Complainant who had been discriminated against on the basis of sex by a number of inappropriate comments made by her employer.

Facts

A sales associate (the “Complainant”) brought a complaint of discrimination and retaliation against her former employer claiming the company’s founder made comments about her appearance, calling her a “beautiful lady” or “beautiful girl” instead of using her name, and telling her that she should “smile more”. The Complainant brought the comments to the attention of her supervisor, the founder’s daughter. A month later a meeting was held between the founder, the Claimant and her supervisor where the Complainant was accused of defaming the founder and was asked to sign a statement confirming, she had not been sexually harassed by the founder. The day after the meeting the Complainant was fired.

Decision 

Section 13 of The Human Rights Code (RSBC 1996, c. 210) protects an employee from any adverse treatment or impact in their employment connected to their sex. To prove discrimination an individual has to prove that:

1)    they have a characteristic protected by the Code;

2)    they experienced an adverse impact with respect to an area protected by the Code; and

3)    that the protected characteristic was a factor in the adverse impact.  

The focus of the analysis is on the effect, rather than the intent, of the respondent’s actions. 

In the Aurora Biomed case, the Tribunal found that the founder had discriminated against the Complainant in her employment by calling her “beautiful girl” or “beautiful lady” and telling her to “smile more”. The Tribunal concluded that these comments were made to make the Complainant feel degraded in connection with her work. In reaching her decision, Tribunal Member Cousineau situated comments made by the founder among the subtle forces which continue to reinforce, perpetuate, and exacerbate the disadvantage faced by many women in their workplaces:

[116] Women have long fought for the right to be evaluated on their merits. One persistent barrier to that goal is the conflation of a woman’s worth with her appearance. Society continues to impose expectations on women to be pleasing to the people around them, particularly men. Their appearance and outward manner are important components of that. While telling a woman to smile may feel like harmless banter, it imposes a burden on her to please people in a way that is disconnected from the tasks of the job, and the skills she brings to it. Calling her “beautiful” or commenting on her appearance reinforces the message that her value is in how she is seen by others and not in the strength of her ideas, her skills, and her contributions to the work. And finally, calling a grown woman a “girl” in the context of her employment infantilizes and patronizes her. It signals that she is not an adult worthy of being taken seriously in their profession. Most often, these are not burdens or messages shared with men. The impact of this type of behaviour is to subtly reinforce gendered power hierarchies in a workplace and, in doing so, to deny women equal access to that space.

The Tribunal then considered whether the Complainant’s sex was a factor in her termination and concluded that it was based on the timing and circumstances which led to it. The Tribunal noted that when a termination of employment is alleged to be discriminatory, the discrimination need not be the only or even primary factor in the termination.  If the Tribunal finds that the termination was in any way due to raising a good faith complaint of sexual harassment, that will constitute discrimination based on sex.

The Tribunal found the employer’s conduct had a serious impact on the Complainant as she was humiliated, hurt, and lost her job.  The company was ordered to pay the Complainant $3,107.17 for lost wages and a further $20,000.00 for injury to dignity, feelings and self-respect as well as put in place an appropriate anti-discrimination and harassment policy.

Takeaway

This case provides an important caution for the employers that even subtle comments can constitute discrimination on the basis of sex. While the Tribunal did not comment on any defined line when it comes to the appropriateness of comments about one’s appearance, the best practice would be to avoid making any comments related to an employee’s sex, appearance or marital status that can have an adverse impact on them. Employers should also ensure to implement a proper anti-discrimination and harassment policy in their workplace.

Employees should make themselves familiar with any anti-discrimination policies and complaint mechanisms existing in their workplace, allowing to address any behaviour that might adversely impact a person’s employment based on their sex. In the absence of proper workplace policies, employees should keep in mind the available complaint mechanism available within the Tribunal.