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Recent Ontario Human Rights Tribunal decision Awards Reinstatement to Employee who was Discouraged from Speaking Punjabi during Non-Working Hours

A recent decision of the Ontario Human Rights Tribunal (“Tribunal”) provides a useful reminder to employers that the Tribunal has the power to award reinstatement under the provisions of the Human Rights Code (“Code”). The decision also confirms that discrimination may result in circumstances where an employer discourages employees from speaking their mother-tongue in the workplace.

In Dhamrait v. JVI, 2010 HRTO 1085, two Punjabi-speaking employees were selected for lay-off. The complainants alleged their selection for lay-off was discriminatory since they had more seniority than all or many of their co-workers and had a history of excellent work performance.  To further support their allegations of discrimination, the complainants, among other things, pointed to the fact that a manager of the Company publicly embarrassed them in the presence of their co-workers on two occasions when she discouraged them from speaking Punjabi in the lunchroom.

In contrast, the Company denied it engaged in any discriminatory conduct and claimed that the complainants were selected for lay-off because they lacked “transferable skills” and the “teamwork” the Company required of its remaining workforce.  With respect to the complainants’ allegation that they were discouraged from speaking in Punjabi, the manager admitted that she spoke to the complainants about using Punjabi in the lunchroom, but justified these comments on the basis that she believed their language was “loud” and “intimidating” to other co-workers who felt “uncomfortable” with their constant use of their mother-tongue. At the hearing, the manager was unable to provide evidence supporting these allegations.

After reviewing the circumstances of the case, the Vice-Chair concluded there was no discrimination on the part of the Company with respect to one of the complainants since there was evidence to support the fact he did not work well in a team environment.  However, the Tribunal came to a different conclusion regarding the second complainant, finding that she was discriminated against by the Company when she was inappropriately selected for lay-off.  According to the Tribunal, there was no evidence to support the fact that she did not have the necessary transferrable skills or was incapable of working in a team.

More importantly, the Tribunal found that the manager’s comments discouraging the complainants from speaking in Punjabi was discriminatory since it resulted in differential treatment based on race and ethnic origin. In particular, the Tribunal found that the manager’s suggestion that the complainants communicate in English during non-working hours imposed a burden on them that was not similarly imposed on other employees who did not share the complainants’ background.

For the Manager’s discriminatory remarks, the Tribunal awarded each of the complainants $3,000 in general damages for losses arising from the infringement of the Code. Further, the Tribunal awarded reinstatement and loss of wages in the amount of $18,500 to the complainant who successfully established that the Company discriminated against her when she was selected for lay-off.  She was also given a further $10,000 in general damages for losses arising from the infringement of her rights under the Code flowing from the discriminatory layoff.

This decision provides employers with a stark example of the significant costs they can incur if they are not sensitive to accommodating the increasing cultural diversity within their workforce, and the many ways employees may choose to express themselves.  It further serves as a reminder that the Tribunal will not shy away from using reinstatement in some cases where discrimination is found.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties.  It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject.  Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.