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Queen's University
 

Pillai

Is the employer responsible for acts of religious discrimination committed by one employee against another?

Facts

Mr. Pillai, a South Asian immigrant man, was hired by Lafarge Canada Inc in February, 1998, to work as a welder in the open gravel mine at the Earle Creek Plant. He was the only visible minority working at the Plant. In March, he attended a harassment seminar offered in the wake of a human rights complaint on the ground of sexual orientation. At the seminar, he disclosed that he had been the victim of racial discrimination in a former employment situation. Soon after the seminar, a co-worker with whom he drove to work informed him that some of the employees had been referring to him as "The Hindu". Mr. Pillai said nothing, but felt hurt, and as time went on, increasingly paranoid that the entire workplace was racist and hostile towards him. In August 1998, his suspicions were confirmed when a truck driver working at Lafarge Canada Inc.'s Earle Creek plant confronted an East Indian immigrant welder who had borrowed his truck without permission. His denigrating accusation was accompanied by a threat of physical harm.  This incident confirmed his suspicion about discriminatory attitudes in the workplace. Mr. Pillai went to the union to complain about the truck driver incident and about his concerns that the workplace was poisoned with racism. When the union's investigator failed to uncover any evidence to corroborate his allegations, Mr. Pillai went to the B.C. Human Rights Commission. In his complaint against Lafarge Canada Inc, he alleged three things: 1) that ethnic and religious slurs had been used in the workplace; 2) that, with one exception, he had not heard these slurs; and that the only slurs he had heard were those delivered by Mr. Beazly in the August incident. At the hearing, witnesses confirmed Mr. Pillai's allegations, but also testified that it was common practice for certain employees, as well as their general manager, Mr. Wagner, to refer to Mr. Pillai using derogatory comments. Mr. Wagner denied that he had used such expressions, but admitted that he had heard them used in the lunchroom and had done nothing to stop it.  In its defense, Lafarge Canada Inc. maintained that the latter evidence, against the employees and their supervisor, was inadmissible because it greatly expanded upon the specific allegations made by Mr. Pillai in his formal complaint. They also claimed that as a result, they had not had sufficient time to prepare a defence.  They moved, therefore, that the case be dismissed on the grounds of breach of natural justice. (Pillai v. Lafarge Canada Inc. (2003), 46 C.H.R.R. D/417, 2003 BCHRT 26.

Questions

  1. Did religious and racial discrimination occur?
  2. Was there a breach of natural justice?
  3. If not, is the employer liable for religious and racial discrimination?

Rulings

  1. Yes
  2. No
  3. Yes

Reasoning:

  1. There was both a singular incident and repeated occurrences of religious and racial discrimination in this case.  The singular incident with the truck driver included both a religious slur (You Hindu Bastard!) and a racist affront (You spice monkey!). Both were used in an aggressive attempt to intimidate and denigrate Mr. Pillai.  Moreover, the lunchroom appellations (Hindu, spice monkey, sand nigger, dune coon and rag head) used by employees, frequently and without reprisal from management, show that the truck driver's discriminatory act was not an isolated incident;  that in fact the work environment was poisoned by racist and religious hostility.
  2. It is true that in his complaint, Mr. Pillai had cited neither those lunchroom appellations enumerated above, nor the action not taken by Mr. Wagner to protect his human rights. However, his complaint was specific enough to indicate that he had witnessed only once an act of racial and religious discrimination; and general enough to include the verbal pronunciation, or silent condoning, of any and all racial and religious slurs used behind his back in the workplace, including those of which he was not aware.  It is therefore not a breach of natural justice to include this evidence. As for the question of insufficient time to prepare a defence, the Tribunal ruled that upon hearing the testimony of these witnesses, the employer could have applied for an adjournment to give itself time to prepare its defense. It chose not to. It is therefore unreasonable for it to claim that there had been a miscarriage of natural justice due to insufficient preparation time.
  3. The employer is liable for the religious and racial discrimination that poisoned its work environment. Since, however, Mr. Pillai had not known about the extent of the lunchroom name calling or about the inaction of management to put a stop to it, the Tribunal ruled that he could not be awarded damages for emotional harm inflicted by those particular acts. It ordered that the employer cease discriminating against Mr. Pillai, to review immediately the harassment policy with the employees, and to pay Mr. Pillai $3000 in damages.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000