by: L. Petruzelka
April 27, 1999.
Key Words
Racial Harassment and racial discrimination
Racial prejudice
Direct and indirect discrimination
Systemic Discrimination
Discrimination by association
Constructive dismissal
Adverse effect discrimination
Differential treatment
Directing Minds
Organic and vicarious liability
Threat of reprisal
Poisoned work environment
Reprisal
Association
Hate propaganda
Violations under the Ontario Human Rights Code (OHRC)
s. 5(1) (2)
s. 9
s. 12
Summary
 | Mr. Gary Pieters an African-Canadian citizen of Canada began employment with Eaton’s around July 1989. |
| Mr. Pieters brother also employed at Eaton’s made a human rights complaint with the OHRC, alleging discrimination in employment because of race and colour. |
| Mr. Pieters believes that he was treated differently because of his association with his brother and that a poisoned work environment made his life at work total misery. He also experienced retaliation. |
| These concerns about differential treatment were brought to the attention of management, specifically Stephen Wickett and the HR Department at Eaton’s. |
| Pieters states that his rights to be free from harassment in the workplace because of race and colour has been violated by the above two respondents in contravention of s. 5(1) and 9 of the Ontario Human Rights Code. |
| Section 5(1) of the Code states: Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap. s. 5 OHRC |
| Section 9. of the Code states: No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. s. 9. OHRC |
| Also because of his relation to his brother at the same company, Mr. Pieters feels there is discrimination because of association which is a contravention of the Code under s. 12. |
Discussion
From the website of Grosman, Grosman & Gale at www.grosman.com: "Racial harassment includes demeaning remarks, jokes or innuendo about an employee. or made about other racial groups in the presence of an employee. The displaying of racist, derogatory or offensive pictures, graffiti or materials. If racist remarks are made about one group while in the presence of a non-racial minority person is also not permissible. Some human rights decisions have used the phrase racially poisoned atmosphere to describe a workplace in which racial harassment is prevalent."
Mr. Pieters believes Eaton’s discriminated against him because of race and colour. He also believes that he was subjected to differential treatment because of his association to his brother who also worked at Eaton’s. His brother filed the complaint with the OHRC in 1993.
Mr. Pieters resigned in June 1994 due to what amounted to constructive dismissal and the hardship associated with working in a hostile poisoned work environment. By August 1994 he made his complaint with Human Rights Commission.
On April 24th, 1999 I e-mailed Mr. Pieters and got this e-mailed response from Mr. Pieters: "The investigator and the OHRC concludes that there is sufficient evidence to warrant the appointment of a Board of Inquiry. On June 1999, the subject matter of the complaint will go before the Commissioners at the OHRC for a decision on whether or not to recommend to the Minister the appointment of a Board of Inquiry, pursuant to s. 36 of the OHRC."
Mr. Pieters is complaining that his human rights in employment were violated under the OHRC and feels he deserves justice.
Racial discrimination and harassment produced a poisoned work environment for the complainant. Comments and conduct by staff at Eaton’s became so pervasive that Mr. Pieters was forced to resign, which amounts to constructive dismissal.
The adverse effect of this discrimination and harassment has probably led many people of different races and colour leery of working at Eaton’s since just by the colour of their skin they could be attacked verbally, investigated or given selective poor performance reviews.
Also workers at Eaton’s know that the company fears people of colour, as being thieves and misfits in society, and spreads this information by messages and memos. This is spreading a form of hate propaganda and leads to still a more hostile work environment.
Conclusion
Racism at such a well-known and historic department store is completely intolerable in a society expounding the value of prohibiting racial prejudice in a culturally diverse workforces. Canada prides itself in diversity as strength but it seems that Eaton’s remains fixed in the dark ages.
A reasonable person would assume a large company, as that would have an anti- discrimination and anti-harassment policy in place. If their policy is only a token symbol of corporate responsibility then Eaton’s needs to re-evaluate this policy and establish a new policy and procedures for reporting violations and speedy resolutions.
The message must be clear and loud that there will be zero tolerance for harassers and disciplinary measures may entail just cause for termination. Eaton’s must then be committed to this policy and carry it out on a day to day basis. The policy must be posted on company bulletin boards in visible areas. Newsletters and seminars would assist in communication and training.
To prevent discrimination and harassment Eaton’s must train, educate and effectively communicate the message of the need for a healthy and safe workplace, free of discrimination and harassment. Eaton’s must take all reports of violations seriously, and professionally investigate them, and come up with a speedy resolution, and not just an apology letter. Having a professionally trained human rights investigator on staff would be a very good solution to the efficacy of investigating reports and quickly resolving them.
The employer is the one who can remedy the situation, reinstate an employee, provide an apology letter and provide compensatory and punitive damages to the complainant.
The employer has vicarious liability for the actions of its employees or agents under Tort law. Since the "directing minds" of Eaton’s knew of and did nothing to stop the racial discrimination and harassment they are then organically liable for their actions. The corporation is a separate legal entity and can be sued.
Eaton’s must show respect for various cultural and ethnic backgrounds through programs that recognize the value of cultural diversity in the workplace.
Management must sponsor and advocate the positive values of a culturally diverse workplace. Workers who respect management will then trust management Racism in the workplace is a negative drain on productivity and can ultimately destroy the company.
If Mr. Pieters wins his case he should get compensation for psychological stress, lost wages and opportunities, training, a company apology letter and perhaps other punitive damages awards.
Disposition of Case
In April 1999, the Ontario Human Rights Commission Case Analysis Report recommended that the case be referred to a Board of Inquiry. The case was adjourned at the Board of Inquiry Sine Die [indefinitely] following the bankruptcy of Eaton's. A negotiated settlement was signed by all parties in April 2000.
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