Canadian Human Rights Reporter
Volume 10, Decision 942
Paragraphs 44940 - 44978
October 1989

Employment/Harassment/Gender Discrimination

Cook v. Eatons
B.C. Human Rights Council

B.C. Council of Human Rights Decision under the British Columbia Human Rights Act, S.B.C 1984, c.22
Elaine Cook --- Complainant
v.
The T. Eaton Company --- Respondent

Date of Complaint: May 12, 1986
Date of Decision: June 30, 1989
Before: Douglas J. Wilson
Appearances by: David Mossop, Counsel for the Complainant
Grant Gayman, Counsel for the Respondent

Summary: The B.C. Human Rights Council finds that Elaine Cook was discriminated against by the T. Eaton Company because of her sex.

[See also (1988), 9 C.H.R.R. D/4967 (B.C. S.C.) for the decision setting aside the B.C. Council of Human Rights' decision to discontinue proceedings on the complaint.]

44940 The matter between Elaine Cook and the T. Eaton Company ('Eaton's") was heard in Vancouver, B.C., on October 18, 19, and December 1988, pursuant to s. 14(1)(d) of the Human Rights Act, S.B.C. 1984 c.22 (as amended).

44941 Cook alleges that Eaton's discriminated against her with respect to the terms and conditions of her employment based upon her sex. Cook's particular allegations of sex discrimination are that:

In March 1986, she was denied the position of a commissioned salesperson in the appliance and furniture departments of Eaton's Nootka store because she is a woman. She further alleges that there is a systemic barrier to women becoming commissioned salespersons.

44942 After successfully competing for the position of a commissioned salesperson in 1980, Eaton's discriminated against Cook in 1984 by restricting her to selling small appliances thereby reducing her potential commissioned earnings because she is a woman. Cook further claims that, in 1985, her status was changed from commissioned salesperson to a salaried employee because "she could not work with the men."

Her success as a commissioned salesperson from 1980 to 1984 was limited because of discriminatory conduct by male co-workers who verbally harassed her because she is a woman.

44943 Eaton's admits that Cook was treated differently from other employees, but contends that the differential treatment was not based upon her sex. Eaton's was attempting to accomodate a "long term, but difficult employee," and the treatment, therefore, was not discriminatory.

44944 Cook testified that she has been an employee of Eaton's for over twenty years, working exclusively at the Nootka Warehouse Store ("the Store") which is a "clearinghouse" location for goods from other Eaton's retail outlets. The majority of the floor space of the Store is taken up by "large ticket items" such as furniture and large appliances. Cook estimated that, over her years of employment, almost all of the commissioned salespersons in the "large ticket" areas have been men, with two exceptions, Karen Laursen and another woman whom she identified as "Tella." Cook, who has worked in the ladies' wear since 1987, said that sales personnel within the Store's "small ticket" departments such as shoes, linen, and ladies' wear have been predominantly female and employees who are paid on a salary basis.

44945 Cook testified that in August 1980, Philip Wakefield, the sales manager of the furniture and appliance department, asked her if she would like to work in the furniture department. Wakefield indicated that she could so well in the furniture department because some customers prefer to deal with a female salesperson.

44946 Cook alleged that she was verbally harassed from 1980 to 1984 by two of her co-workers, Jagtar Toor and Kevin Brennan. During 1981, Toor started to give Cook a "bad time". She said that, if she "got close to a customer," he would tell her to get out of the main aisle or he would "kick me in the ass." Such threats were said to have occurred three to five times per week from 1981 to 1984. Cook stated that, in 1983 or 1984, she once reacted to Toor's conduct by insulting him with a racial slur. Cook then complained to Wakefield about Toor's behaviour. She said Wakefield arranged a meeting with personnel at which Cook apologized for her remark but Toor refused to shake her hand.

44947 Cook described her relationship with Brennan as "not very good." She indicated that he told her to "just f... off" three to five times a week and called her "Tokyo Rose." She said the other men in the department were "unfriendly" but not abusive. She did not approach management to complain about any of the comments made by Brennan and stated that, prior to transferring to the furniture department, she got along "very well" with Brennan and had no problems with Toor. Cook said that Toor and Brennan were the "top" salespersons but that, at one time, she was the "second top" salesperson.

44948 Cook contended that the abusive behaviour of Toor and Brennan and the unfriendly attitude of the other sales staff affected her sales which declined consistently after an initial increase in 1981. She said she could not ask any questions about merchandise with "hold" or "sold" tags even if the items "sat there for a month." Cook said that, if she tried to ask questions, she would be told to "fuck off."

44949 Cook said that she asked to be transferred to the small electrical appliance department in August 1984 because she believed that she "just could not make it in (the furniture) department with those men." She said that she told Wakefield, "I just can't take it anymore."

44950 Cook said that, after she transferred to the appliance department, the manager, Dave Burnett, told the other sales staff that he would not tolerate foul language. As a result, Cook got along "very well" in the appliance department, although the men "pretty well stayed in their own area."

44951 In December 1985, Cook's status was changed from commission to a regular salary. Cook said she had a discussion with Walter Pringle, the manager of the Store, and she tried to explain to him that she saw no reason why she could not sell in the appliance department and remain on commission. Pringle told her she "could not work with the men."

44952 In March 1986, a full-time commissioned salesperson in the appliance department retired, creating a vacancy for which Cook applied. However, the position was subsequently won by a male, Kim Kuzyk. Cook said that Dwayne Benson, The sales manager for appliance, informed her that Kuzyk got the job, despite having only three months' experience in Eaton's, so as "to keep harmony in the department." Cook believes that the perception that she would cause disharmony within the appliance department was based upon her sex.

44953 Several employees and former employees of Eaton's gave evidence, including three of Cook's former supervisors. Walter Pringle, manager of the Store, Philip Wakefield, sales manager of the furniture and appliance department of the Store, Dave Burnett, the sales manager of the appliance and small wares department from 1992 to March 1985, Dwayne Benson, the sales manager of the appliance and small wares department from 1985 to 1988 and Kenneth Smith, a former personnel manager at the Store, all denied Cook's allegations of sex discrimination. Patricia Jones, the market personnel manager, also gave evidence.

44954 Smith testified that there was little attraction for women to work in the Store on a sales commission basis. He said he had had many conversations with a number of different women who worked in the Store and who were seeking advancement but that he "couldn't drag then in." Pringle and Wakefield supported Smith's testimony. They said that the main reason why there are no women currently employed in either the furniture or appliance department is because no women have applied for recently posted vacancies.

44955 Wakefield denied any systemic discrimination and contended that a woman salesperson would be beneficial to the furniture and appliance departments. He noted that, in 1980 after Karen Laursen injured her back and could no longer work as a commissioned salesperson, her position was posted and he chose Cook to replace Laursen.

44956 Burnett also supported the contention that there was no systemic barrier to women becoming commissioned sales persons. He said that he had posted two vacancies for a commissioned salesperson with the appliance department. Cook, however, did not apply for either of them.

44957 Jones said that Eaton's would like more women in commissioned sales but it was "more difficult" to encourage women to go into this area. She added that , while there were no women in the Store's furniture and appliance area, there were 29 women as compared to 62 men in commissioned sales in other Eaton's outlets. None of the witnesses for Eaton's indicated that any measures were taken to recruit women as commissioned salespersons other than posting vacancies in the store.

44958 With regard to Cook's allegation that she was discriminated against because she was a woman when applying for the vacant position of salesperson in 1986, Benson testified that he posted the vacancy only within the Store and that Cook and Kuzyk were the only applicants for the position. Benson received a resume from Kuzyk but only a transfer document from Cook. He met with Wakefield and Pringle and discussed Cook's past employment as a commissioned salesperson in the furniture department. He contended, however, that he ignored Cook's previous difficulties and chose Kuzyk on the basis of his superior qualifications and experience in the sales field. Benson submitted Kuzyk's resume (Exhibit No. 8) and said that, while Kuzyk had limited experience in sales with Eaton's, he had extensive experience as a commissioned salesperson both with the Hudson's Bay Company and Simpsons-Sears Limited.

44959 Regarding Cook's allegation that, in 1985, her status was reduced from a commissioned salesperson to a salaried employee because "she could not work with men," Burnett, Wakefield, Pringle and Smith all denied that this change was discriminatory in nature and further contended that the change in Cook's status was made for her benefit.

44960 Burnett testified that, when he mentioned the idea of creating a new position for a commissioned salesperson to sell small electrical appliances, Wakefield recommended Cook for the position. Burnett said that he accepted Wakefield's recommendation and offered her the position on the stipulation that she sell exclusively small electrical appliances because the heavy goods area could not accomodate another salesperson at that time. He subsequently relented and allowed Cook to "cross sell" to her prior customers.

44961 Smith supported Burnett's testimony that the transfer had been made for Cook's benefit. He said that he, Burnett, and Wakefield met to discuss Cook's situation. They concluded that, due to Cook's years of service, Eaton's should simply make the position available to her. This would help to reduce her financial deficit which she had acquired as a result of her "draw."

44962 A "draw" provides the commissioned salesperson with a guaranteed minimum income by granting a loan against future commission earnings. When the commissioned salesperson does not attain sales commissions equal to their draw level, the draw will then provide the salesperson with a minimum income for that time period. The shortfall in commissions will be made up when the commissions exceed the draw level. As illustrated in the respondent's "Department Average Earnings," a 1981 to 1984 graph (Exhibit No. 5), Cook's average earnings while in the furniture department decreased substantially after 1983.

44963 Benson testified that, when he noticed Cook had a serious deficit due to the draw, he attempted to alleviate her adverse situation by allowing her to sell "big ticket items" on Sundays to supplement her income. In relation to Cook's new responsibilities, Benson circulated a memo (exhibit No. 1) which specified sales floor guidelines instructing Cook to restrict her selling to small electrical items with the exception of providing the necessary coverage on Sundays in the "large ticket items" areas.

44964 Pringle testified that the above decision, in which he was involved, was based upon the fact that there was not enough volume in the small appliance section of the appliance department to provide sufficient commission to allow Cook to overcome her deficit. He together with Benson and Smith, therefore decided to give Cook a speciality sales salary, write off all her overdrawn deficit commissions of approximately $12, 000 and give her an increase of $18 per week in salary.

44965 Smith supported the testimony of Benson and Pringle. He stated that upon investigating the lack of opportunity for Cook to make a sufficient income on commission in the small appliance area, it was recommended that Cook be transferred to the speciality sales category and that her deficit position be forgiven.

44966 In regard to Cook's allegations that her success as a commissioned salesperson was limited because of harassment by male workers, Wakefield explained that, due to the highly competitive nature of commission sales, disputes often arose between personnel. Cook had difficulties in relationships with other salespersons within the Store. He explained the "partnership system" whereby salesperson were designated partners to assist in a variety of tasks including the moving of heavy items. Wakefield said that Cook had difficulty maintaining her partners because of "her aloof and abrasive nature." Wakefield also maintained that Cook never made a statement to him that her declining sales in 1983 were due to problems with Toor and Brennan.

44967 The relevant provision of s. 8 of the Human Rights Act reads as follows:
8. (1) No person or anyone acting on their(sic) behalf shall ...
(b) discriminate against a person with respect to employment or any term or condition of employment,
because of the ...sex of that person.

44968 Cook must establish a prima facie case of discrimination by leading evidence that the discriminatory conduct not only occurred, but also that her sex was a factor therein. Cook's sex need not be the "sole," "effective," or "primary" reason for the discriminatory conduct in order for a contravention to have taken place. It is sufficient if Cook's sex was a significant reason for the conduct. (Ontario Human Rights Comm.) v. Borough of Etobicoke (1982), 3 C.H.R.R. D/781, (S.C.C.), Holloway v. Clairco Foods Ltd. (1983), 4 C.H.R.R. D/1454 (B.C. Bd. inq.)). Upon establishing a prima facie case, the evidentiary burden then shifts to Eaton's to prove upon a balance of probabilities that the conduct either did not occur or, if it did occur, that it was not because of Cook's sex.

44969 Eaton's did not call Toor and Brennan to dispute Cook's allegations of verbal harassment and, therefore, I accept her uncontradicted testimony that she was subject to abusive threats and obscene language. Wakefield testified that Cook's "personality differences" with the male sales staff were due to her "aloof and abrasive nature" However, he did not indicate that he directly encountered Cook's "aloof and abrasive nature" and and none of the sales staff who may have complained to him about Cook were called to testify. Wakefield's contention that Cook had problems maintaining her "partners," designated salespersons who assist each other in a variety of duties was disputed by Cook. Cook testified that she could remember only three partners: Floyd Seida, her partner when she left: Pat Schneider, who left for reasons other than Cook: and "Mr. Kindred." Again, none of these employees or former employees was called to testify about their working relationship with Cook.

44970 In assessing whether the verbal harassment by Toor and Brennan was gender based, I regard as most telling Cook's uncontradicted testimony that, prior to moving to the furniture department, she got along well with Brennan and had no problems with Toor. She stated that the verbal harassment by Toor and Brennan occurred only after she transferred to the furniture department. Wakefield agreed that he arranged a meeting for Cook and Toor with "personnel" to endeavour to resolve the problems that Cook brought to his attention. Burnett did not dispute Cook's testimony that, when Cook was transferred to his department, he called the male salespersons together and instructed them that he would not tolerate any "foul language." I also note that Wakefield indicated that the commissioned sales area had a "highly competitive nature." All this evidence tends to support Cook's allegations that Toor and Brennan attempted to intimidate Cook through gender-based verbal harassment when she became a competitor. All of the above leads me to conclude that Cook's` sex was a significant factor in the verbal harassment.

44971 It follows that I accept Cook's evidence that the verbal harassment affected her sales record and caused her to ask to leave the furniture department in 1985. Counsel for Eaton's argued that illness and death of Cook's grandson was the sole cause of her declining sales because she took time off to visit him in the hospital. However, he produced no records as to the amount of time she took off, nor did he submit any other evidence to support his argument. Therefore, I accept Cook's evidence that it was only the time she took off that negatively affected her sales.

44972 In reviewing all of the testimony, the evidence tends to support Cook's allegations that her difficult experiences in the furniture department from 1980 to 1985 significantly influenced management's decision to hire Kuzyk over Cook in 1986. Benson testified that he, Wakefield and Pringle discussed Cook's unsuccessful tenure as a commissioned salesperson but that he "ignored her previous difficulties" and chose Kuzyk on the objective basis of Kuzyk's "superior qualifications and experience in the sales field." While Kuzyk's resume (Exhibit No. 8) indicates that his educational background in sales is excellent, he does not state that he laid off by both the Hudson's Bay Company in 1985 and Simpsons-Sears Ltd. in 1982. Therefore it is not clear that he was better qualified than Cook who had almost eighteen more years of seniority with Eaton's. Here again, Eaton's did not call on Kuzyk to help clarify this issue.

44973 The evidence indicates that the Store has employed three women as commissioned salespersons in the furniture department has never employed a woman as a commissioned salesperson in the appliance department. This is in sharp contrast to Jones' testimony that Eaton's other retail stores employ 29 women out of a total of 91 commissioned salespersons and also tends to support counsel for Cook's contention that there is a barrier to women selling in the Store's furniture and appliance departments.

44974 Burnett's evidence that he posted two in-store vacancies for a commissioned salespersons in the appliance department and that Cook did not apply is misleading when one considers that Cook had already been transferred to this same department from the furniture department in 1985. At that time, she was told to concentrate exclusively on small appliances and was only allowed to sell "big ticket" items on Sunday. Pringle testified that there was not enough volume in the small appliance department to provide sufficient commission for Cook to meet her "draw." Therefore, there was little or no incentive for Cook to apply for these posted positions with the knowledge that no woman had ever been hired to sell the "big ticket" items in the appliance department.

44975 Counsel for Eaton's claimed that while Cook encountered difficulties in the furniture department, two other women who worked in that department had no problems. He argued that this supported Eaton's contention that there was no discrimination against Cook. However, counsel introduced no evidence to uphold his argument that Karen Laursen and "Tella" had "no problems" or even that they had been successful as commissioned salespersons. Neither woman was called to testify although two other former employees, Benson and Smith, were called by Eaton's. The sales records of Laursen and "Tella" were not introduced, although a graph (Exhibit No. 5) was produced depicting Cook's commission earnings.

44976 After reviewing the whole of the evidence, I find that Cook has established a prima facie case of discrimination and that her sex was a significant factor in the discriminatory conduct. Further, I find that Eaton's has not discharged its evidentiary burden by proving that Cook's allegations of discrimination did not occur or that sex was not a significant factor. I again note Eaton's failure to call witnesses that may have had direct knowledge of the incidents and behaviour about which Cook complained. I also note that counsel for Eaton's failed to produce leave and complete sales records (or even "Tella's last name) to support his argument that Eaton's did not discriminate against Cook.

44977 Cook did not ask for wages lost. Her counsel, however, did not request Cook be given an opportunity to apply for any future vacancies in the appliance section of the store and that Cook receive an award for the indignity and injury to feelings of self-respect as a result of the discrimination.

44978 The complaint is justified and, pursuant to s. 17 of the Human Rights Act, I hereby order that:
1. the respondent cease the said contravention and refrain from commiting the same or similar contravention, namely discriminating against a person because of their sex;

2. the complainant be given the first vacant position available as a commissioned salesperson in the appliance department of the Store; and

3. the respondent pay to the complainant the amount of $2, 000 for the embarassment, injury to feelings and loss of dignity which she suffered as a result of the discrimination.
Source: Canadian Human Rights Reporter. Indexed as: Cook v. T. Eaton Co. Volume 10, Decision 942 Paragraphs 44940 - 44978 October 1989.