**Note: The listed provisions of the Yukon Human Rights Act (“the Act”) do not reflect the current legislation.
The Complainant was employed by the Respondent. He alleged that during his employment, he was subject to harassment due to his First Nations ancestry. He alleged that he received many direct discriminatory comments. He also alleged that he was denied a promotion to a supervisory position due to his First Nations ancestry. Finally, he alleged that after having taken a stress leave, he was not rehired. For these reasons, he submitted a complaint to the Yukon Human Rights Commission (“the Commission”).
In making its decision, the Yukon Human Rights Board of Adjudication (“the Board”) outlined the following three issues:
- Was the Complainant harassed on the basis of his First Nation ancestry (in contravention of section 13 of the Act)?
- Was the Complainant discriminated against on the basis of his First Nation ancestry when he was denied a promotion to a supervisor position (in contravention of section 8(b) of the Act)?
- Was the Complainant discriminated against on the basis of his First Nation ancestry when he was not rehired after taking a stress leave (in contravention of section 8(b) of the Act)?
First, after hearing evidence given by many witnesses, the Board found that the Complainant had indeed faced discrimination in the workplace. At least one of the Complainant’s co-workers made direct derogatory comments to the Complainant. The Board also found that the general acceptance of inappropriate comments by staff and management contributed to a poisoned work environment. Further, the Board found that there were some indirect comments made that also contributed to the poisoned work environment. Finally, case law says that an employer has a duty to take positive, meaningful steps to resolve issues of harassment. In this case, the Board found that the Respondent’s efforts to address the harassment were not adequate. For example, once the Respondent received a human rights complaint, she chose not to rehire the Complainant.
Second, the Board found that there was no discrimination when the Respondent chose not to promote the Complainant to a supervisor position. To prove this point, the Complainant had to prove that there was prima facie discrimination in the hiring process. In other words, at the first blush, does it appear that the Respondent discriminated against the Complainant on the basis of his First Nation ancestry in the context of denying his promotion? The Board found that there was no prima facie discrimination. Instead, the Board found that the Complainant was not given the supervisor position due to his education and experience. Though the Complainant’s abuse of alcohol and personal problems could have been relevant factors, the Board could not conclude that that these factors were in relation to his racial ancestry.
Third, the Board found that the decision to not rehire the Complainant was not based on his First Nation ancestry. In fact, the evidence showed that at first, the Respondent was very prepared to rehire the Complainant. It was not plausible that the Respondent suddenly changed her attitude based on racial stereotypes. There was no evidence of such a drastic attitudinal shift. The Board found that the Complainant’s employment was terminated in part because of outstanding criminal charges and in part because the Respondent felt that there was rift in their relationship. However, the Board also found that a significant reason that the Respondent terminated the Complainant’s employment was because he filed his human rights complaint. The Board deemed that this was an act of retaliation, which was in contravention of section 28 of the Act.
As a result of finding employment discrimination based on the Complainant’s First Nation ancestry (issue #1), the Board ordered the Respondent to complete the following actions:
- Pay the Complainant $3000 for injury to dignity, feelings or self-respect
- Post the copy of the decision at a visible location within each facility operated by the Respondent.
- Require each employee to attend a one-day cultural sensitivity workshop.
- Pay a fine of $1500 for the Respondent’s act of retaliation.