Human Rights Office

Human Rights Office
Human Rights Office

Nwagbo v. Li, 2017 HRTO 458 (CanLII)

Summary:

In this case the applicant, Mr. Nwagbo worked as a Client Service Representative (CSR) at Top Choice Tax Accounting Inc. (Top Choice). The respondent, Ms. Li was the owner of Top Choice. Mr. Nwagbo worked as CSR from January 25, 2016 till April 17, 2016, when his employment was terminated by the respondent. It is important to note that the applicant in this case self-identifies as African-Canadian. Under the job duties of a CSR were the following responsibilities; conducting recruitment or marketing activities with prospective clients. The central issue in this case stems from an email Ms. Li sent to another employee, Mr. Borrelli, regarding the applicant’s work performance. A central part of Mr. Nwagbo’s work was making cold-calls to potential clients. In the email dated March 4, 2016 Ms Li wrote,

            Dear Pete [Mr. Borrelli],

            Thank you for sharing your thoughts. I had conversation with Steve [the applicant] about his duties to prospect. He said he hates cold calls. For the those reasons:

            1. For phone cold call: he can not be on the phone for long as his ears hurt. He told me that the first a couple of days of video wearing headsets still  ringing buzz sounds in his head till now.

            2. (This is what I assumed) for in-person cold call, he is a big and tall African man. That may be an issue to many people for the stereotype.

            So far, Steve has not making 2-3 appointments per week he should be getting on his own. […]

This email and other emails exchanged between Ms. Li and Mr. Borelli were later forwarded on to Mr. Nwagbo. In this case the applicant testified that he took offence to the email and that the email impacted him psychologically. He did not however, communicate these feelings to Ms. Li. Following this email, Ms. Li testified that Mr. Nwagbo’s performance declined and therefore she was forced to terminate his employment during the probationary period. After being terminated, Mr. Nwagbo sent an email to the respondent outlining his concerns regarding the email and stating that he wanted $20,000 in compensation and that if he did not receive this amount he would file a case with the Human Rights Tribunal of Ontario. Ms. Li did not respond to this message from the applicant. In this case it was found that the respondent discriminated against the applicant with respect to employment because of race.

Questions to be Determined:

1. Did the respondent, discriminate against the applicant with respect to employment  because of race?

Findings:

1. Did the respondent, discriminate against the applicant with respect to employment  because of race?

YES

Reasoning:

1. In this case the adjudicator, discussed the stereotypical assumptions being made by the respondent Ms. Li.

The applicant never told the respondent that he did not like making in-person cold     calls. The respondent explained that she assumed he did not make them because he had been “racially profiled” in the past and felt uncomfortable engaging in such activities. I find that the respondent’s perception of the applicant’s work performance, as described in the March 4, 2016 email, is based in part on stereotypical assumptions about the applicant because of his race. Based on those stereotypical assumptions, the     respondent believed that the applicant felt uncomfortable engaging in in-person cold calling and clients would react negatively to the applicant (para 44).

In addition, the adjudicator also considered the fact that Ms. Li shared these stereotypical ideas with a 3rd party, Mr. Borrelli.  

Not only was the respondent’s email offensive and based on racial stereotypes and assumptions, she shared her views with Mr. Borrelli, a third party, and with the applicant. Instead of assisting the applicant by providing him with advice and support     to improve his prospecting activities, she forwarded the offensive email to him sharing    with him her racially based stereotypical assumptions that he struggled in his position because of his race. The incident is further aggravated by the views having     been made in writing in an email exchange that other employees had access to (para 46).

Ultimately it was determined that race was a factor in the applicant’s termination.

The respondent’s explanation for sending the email was to try and assist the applicant by finding a reason for his weak performance. The inference I draw from this, as well as all of the surrounding circumstances, is that the respondent’s perception of the applicant’s work performance was, in part, tainted by his race. I  understand that the applicant’s performance was weak from the beginning and the respondent was forced to eliminate the marketing and client recruitment activities in part because of the applicant’s performance. However, the respondent inappropriately believed that the applicant could not perform the essential elements of his position because of his race and ultimately affected his performance. Since he was terminated because of his poor performance, I find that race was a factor in his termination (para 47).
 

Remedy: 

Award for injury to dignity, feelings and self-respect - $2,500.

(In this case the amount was determined based on the fact that the racial discrimination only occurred once, but also taking into the account that the racial discrimination had been shared with another employee).