** Note: This document contains some vulgar language that may be upsetting to some readers.
Two sisters (the “Complainants”) filed a human rights complaint with the Yukon Human Rights Commission (“the Commission”). The complaint stated that the Respondent had harassed the Complainants in connection with their employment on the prohibited grounds of ancestry and sex. As such, they claimed the Respondent was acting contrary to the Yukon Human Rights Act. The complaints were subsequently referred by the Commission to the Yukon Human Rights Panel of Adjudicators for a hearing before the Board of Adjudication. Although the Respondent participated in some pre-hearing procedures, she did not attend the hearing.
The Complainants worked for the Respondent as cleaners doing post-construction clean up at a school. Both Complainants claimed that while they were driving to meet the Respondent to pick up their cheques, one of their cellphones rang. It was a “pocket dial” made by the Respondent. The Complainants heard the Respondent complaining about them and calling them “stupid-ass bitches”. They proceeded to meet with the Respondent to claim their money and walked away without saying anything.
Several days later, the Complainants quit their job because they did not like how they were being treated. After that, their communication with the Respondent was limited, save for some communication about their pay. During this time, the Respondent informed them that she was going to change their pay rate to minimum wage. When the Complainants were not paid at the expected date, they contacted the Employment Standards Office to seek solutions. A few days later, one of the Complainants sent a text to the Respondent, outlining her obligations under the Employment Standard Act. In her response, the Respondent called the Complainants “FAS kuds”, “squaws” and “pill poppers”. One of the Complainants presumed that she meant “FAS kids” – this presumption was later shared by the Yukon Human Rights Board of Adjudication (“the Board”). The next day, the Complainants went to the jobsite to get paid, and got their money and left. Earlier that afternoon, the Respondent left a voicemail on one of the Complainants’ phones. In this message, the Respondent referred to them by the term “squaw”.
As set out by the Commission, the Board of Adjudication had to find four elements in order to conclude that the Respondent had harassed the Complainants:
1) The respondent engaged in a course of vexatious conduct;
2) The conduct occurred in connection to the Complainants’ employment (contrary to section 9 of the Act);
3) The Respondent knew, or ought to have known the impugned conduct was unwelcome; and
4) The harassment was in relation to a prohibited ground (which are listed in section 7 of the Act).
First, the Board concluded that the Respondent did engage in a course of vexatious conduct. Case law has established that vexatious conduct is behaviour that “must have involved a degree of repetition” and “have been annoying, distressing, troubling or agitating” (Ghosh v Domglas Inc.). In this case, the name-calling by the Respondent was abusive in tone and content and it occurred several times. Second, although some of the conduct by the Respondent occurred after the Complainants had quit their job, it was in the context of their attempts to obtain their final paycheques. The Board concluded that collecting final pay is an aspect of employment. Therefore, there was sufficient connection with employment. Next, the Board found that the Respondent knew or ought to have known that the conduct was unwelcome. In fact, the Board stated that a reasonable person would have known that calling the Complainants such names is unwelcome conduct. Finally, the Board considered whether the vexatious conduct was in reference to a prohibited ground of discrimination. According to the Act, it is prohibited to discriminate against people on the basis of certain grounds. In this case, the Board found that the word “squaw” is a gendered, racist pejorative targeting Indigenous women. The term “FAS kids” is also racist, as it is rooted in the racist stereotype that Indigenous persons abuse alcohol. Therefore, the Board found that the Respondent’s actions were discriminatory in relation to the prohibited grounds of sex and ancestry. As all four required elements were met, the Board concluded that the Respondent had harassed the Complainants.
After considering the circumstances of the case, including the nature of the harassment, the duration, the age of the Complainants and the impact upon them, the Board decided to award each of the Complainants $2,500 in damages for the injury to their dignity, feelings, and self-respect caused by the discrimination.