October 28, 2020
In June 2020, the Ontario Human Rights Tribunal ruled in favour of an applicant who was the victim of a racial slur during the course of being served at a local pizza franchise. The applicant had just ordered lunch with his friends from high school when one member of the group accidentally cracked a window pane after leaning his chair too far back. The applicant was not directly involved in the accident, yet the restaurant workers demanded that they all leave. When the applicant went to the counter to collect his lunch, the employee called him the “n” word and told him to leave. The applicant identifies as Black.
The applicant’s mother attempted to contact the manager of the pizza restaurant to lodge a complaint, but they refused to speak with her. She then called the corporate head office for Gino’s Pizza to complain. She was referred back to the franchise operation, and they agreed to investigate and get back to her. When she did not receive a call back, she called again and was once again referred back to the franchise outlet. At this point, it became apparent that her son was not going to receive an apology from anyone. As such, she decided to initiate an application to the Human Rights Tribunal alleging discrimination on the basis of race in service against the franchisee. The Tribunal Application was successful and resulted in an award against the franchisee which included a general damages award of $15,000 and a recommendation that the manager of the franchisee take appropriate steps to ensure such an event would not occur again.
Generally speaking, organizations are getting better at incorporating an equity, diversity, and inclusion (“EDI”) lens into their workplace. Yet, every now and again a situation occurs where racist, sexist or homophobic behaviour occurs in the context of employment or an employee interacting with colleagues or providing service to the public.
Gino’s Pizza exhibited a number of shortcomings in this instance. First, one of their employees made a racist remark to a customer during the course of his employment, for which the company was found to be vicariously liable. Second, the company did not take any kind of responsibility for their remarks, either at the franchise level or at the corporate head office level; they had several opportunities to apologize and make amends to the applicant, but did not do so. Third, as the company did not respond to the mother’s complaints or defend the applicant’s proceeding, it is unclear whether they instituted any form of remedial diversity training to educate their employees to prevent further breaches of the Code and to promote a discrimination free environment.
This case highlights the due diligence and actions which all employers should be taking to address EDI within their workplace; which includes ensuring that company-wide EDI training and policies are in place and updated regularly.
It is critical that companies implement organization-wide EDI training and implement diversity policies, and update both on a regular basis. Some behaviours that are problematic by today’s standards were probably seen as acceptable at one point in time, but now we have an evolved understanding of what kinds of behaviours are problematic from an EDI standpoint. Nuanced understandings of racism, sexism and homophobia are always changing and it is necessary that all members of the workforce receive updated training to ensure their practices are in line with current understandings of social and legal issues, how to prevent issues proactively and how to address issues should they occur.
While this case involved a racial slur of an obviously egregious nature and contrary to the Code, there are many less obvious practices that can still be found to be discriminatory and cause an employer to be liable before a human rights Tribunal or a Court. A racism-related scandal or allegations of discrimination can be quite costly for companies, both financially and in terms of a poor public image.
Diversity in the workplace is also important. By recruiting and maintaining a diverse workforce at all levels of the organization, including senior management and executives, representative of our multicultural society, a company can expect to gain a wealth of knowledge from individuals with different backgrounds and perspectives through lived experiences. These perspectives are vital to adapting to the changing demographics of society, including clients.
It is a fallacy to suggest that implementing diverse hiring practices will reduce the quality of candidates being recruited. Such an assumption is based on the unproven idea that there are little or no qualified diverse candidates available.
While implementing consistent EDI training is not a guarantee that an organization will avoid allegations of discriminatory practices altogether, having EDI policies and training, a strong company-wide EDI lens, and a diverse workplace at all levels, will substantially decrease the likelihood of an incident occurring.
Also, taking a more proactive progressive stance that is “woke” to current understandings of race, gender and sexual identity issues can help in creating a positive image of an organization, both internally and externally; one that shows that the organization is well informed and progressive on social and workplace issues.
Have Questions or Concerns?
The Koskie Minsky LLP Employment Law Group is here to assist in adopting and applying best practices related to hiring a diverse workforce and implementing a company-wide EDI lens.
MS v Gino’s Pizza, 2020 HRTO 465
Authors: Arleen Huggins, Partner and Rebecca Meharchand, Articling Student