Human Rights Office

Human Rights Office
Human Rights Office

GC v. Leon's Furniture Limited

 

Summary

The Applicant, an African-Canadian female, was hired by Leon's Furniture Limited in Dartmouth, Nova Scotia as a customer service agent in 2004. Initially, she was promoted on several occasions and obtained the position of sales associate in 2006. She had aspirations of progressing as a manager.

In 2008 there was a change of management and GC started experiencing issues with her new supervisor, Brent Hopkins. She described that she started experiencing unusually harsh disciplinary outcome as a result of her failure to attend work on January 6, 2008. According to the complainant, believing that it would not be busy in the store because of inclement weather and wanting to stay home for her daughter's birthday, she had called into the store the morning of this shift and left a message for Hopkins. She stated that she was planning to stay home but would come in if she was really needed, to which he said "fine." After receiving the suspension, which she considered overly harsh, she complained to Tammy Bishop, the store manager, who supported Hopkins' decision. She had no prior disciplinary history until that moment.

The complainant claimed she was subject to differential treatment again in March 2008, when her day off was taken away, and she was issued a written warning for leaving the store during work hours without swiping out or obtaining permission from management to leave, in contravention of store policy. The complainant alleged that it was common practice that associates could take a break and leave the store to take care of personal errands without swiping out as long as the floor was covered and that other employees had done so without penalty. She also believes that she was disciplined twice for the same conduct, first by Kim Hennigar in making her work the Saturday shift after granting her the day off, and then by Brent Hopkins and Tammy Bishop following the sales meeting, when she was presented with a written warning.

After these incidents, GC was ridiculed in public by other employees.

In another occasion, Hopkins allocated her sales commissions to another employee

because Hopkins believed that the complainant had told a customer that furniture would be available for delivery when it was not, resulting in a customer complaint. Another time, the complainant was accused by another sales associate of taking away his customer, so Hopkins decided to take her sales commission away again.

In the summer of 2007, when she had been a Sales Associate for almost a year, the Complainant applied to Ms. Bishop to be considered for the position of Warehouse Manager. The Complainant states that she was aware at the time that the position involved working weekends, nights and a decrease in pay. She says that she was fine with that. Her evidence was that she was already required to work evenings and weekends as a Sales Associate.

139. The Complainant gave Ms. Bishop a letter expressing interest in the position and then followed up with her. She testified that Ms. Bishop shut her down, telling her that, “With your personality, you belong on the floor.”

In addition to differential treatment, the complainant alleged that Bishop's husband had repeatedly called her "Contessa”, a term commonly used for slaves who were servants working in a slave master's house, during a staff Christmas party, and that, on another occasion, he greeted her by saying "what's up biotch," which she characterized as "black lingo."

GC testified that in the spring of 2008 she changed her hairstyle by putting dreadlocks in her hair. She described being at work with Mr. Hopkins and Paul Koutros, another manager. She testified that Mr. Hopkins touched her hair and commented that her “hair felt like wool.” Mr. Hopkins had also called her "Sunshine" – a term which she claimed means that "you are so black that you shine," and had called her "Condoleezza Rice" – the former U.S. Secretary of State who is also a black female – in front of customers.

In April 2008, the complainant alleged that, when she was called into Hopkins' office for her performance evaluation, he stated: "Everyone out. There's going to be a lynching." Two managers left the room, but Bishop remained and did not make any response to the comment. After this meeting, the complainant immediately called the area supervisor for the store, David MacLeod, with whom she was involved romantically, about the comment, who told her to complain to Bishop. However, as Bishop had been present at the time, the complainant did not do so, and no further action was taken. Approximately three weeks later, considering herself unable to remain at Leon's after this final comment, the complainant submitted her resignation and filed a Human rights complaint.

In response to the human rights complaint, Leon's initiated an investigation into the allegations of racial discrimination, which was conducted by MacLeod, who did not disclose his prior relationship with the complainant and had never investigated a complaint of racial discrimination. After interviewing several employees, MacLeod concluded that

racism played no part in what had occurred, but that Hopkins' conduct could be construed as unprofessional and issued him a letter of warning dated June 2008.
 

Questions to be Determined and Findings

1. Was the Applicant discriminated against on the basis of race during his employment at Leon’s? (YES)
 

Reasoning

1. The decision in the instant case focused not on finding an intention to discriminate, but on whether there were differential treatment and underlying biases from which an inference of discrimination could be drawn.

In the instances of harsh discipline, the Tribunal found that the Respondent provided no evidence to contradict the Complainant’s testimony that Mr. Hopkins allowed one or more sales associates to go home early that day or had indicated he might do the same thing on January 6, 2008. The Tribunal also noticed that the  Complainant had no prior disciplinary record at this time, only a few notes in her personnel file about having been spoken to about customer/sales related issues.

To justify the reasonableness of the Respondent’s decision to suspend the Complainant in addition to the written warning, the Respondent relies upon its assertion that the Complainant had a poor attendance record, performance issues and did not have any regard for her job. I cannot accept the Respondent’s characterization of Ms. Cromwell as an employee with serious attendance issues, the implication being that she was an employee with a history of regularly making a choice to not come to work. The Respondent did not provide documentary evidence to identify specific lengthy or frequent absences or the reasons for the absences. (p. 241)

Moreover, the Tribunal found that two-day suspension, without pay, for a first-time offence was harsh, that the Respondent retroactively changed its decision respecting discipline, and that there is no evidence of any similar disciplinary approach being taken against any other employee. Therefore, GC was treated differently from other employees.

The Respondent, in general, appears to be quick to assume that the Complainant was not committed to her work and has tried to portray the Complainant as a poor employee based on the documentary record of the performance reviews in 2007 during her probation period and the October 2007 review. (p. 251)

Additionally, requiring the Complainant to work on Saturday, after she had been granted the day off, was an unreasonable form of discipline in the circumstances. There is no evidence to suggest that other employees were forced to work on a day they were pre-approved by management to have off. This also constitutes differential treatment of the Complainant by the Respondent.

Regarding the discriminatory comments that GC received, the Tribunal determined that the Respondent is under an obligation to provide a healthy work environment and that includes ensuring that its employees are not subjected to discriminatory comments at work-related social functions, whether by other employees or guests.

The Complainant’s evidence was credible with respect to her having been called “Contessa” and “Biotch” by Mr. Bishop. Also, Mr. Hopkins was clearly ridiculing the texture of the Complainant’s hair, not complimenting her, when he said GC’s hair looked like wool.

Referring to the Complainant as “Biotch” in “black lingo” is an overt, albeit indirect reference, to the Complainant’s race. It was objectively offensive for the Complainant to have been addressed in this manner by a guest of the Respondent. (p. 272)

When addressing the lynching comment made by Mr. Bishop, the Tribunal emphasizes:

It is unacceptable for a manager to threaten physical violence as a joke in a workplace. In addition, this was no ordinary reference to violence, such as threatening to strike a person. The nature of the violence referred to, namely “lynching,” represents the murder of African Americans on the basis of their racial identity. Lynching is widely known to be one of the means by which white southern slave owners exerted control over African-American slaves, who were treated as sub-human and as a commodity. That the comment arose in the context of a performance review underscores the economic and power differences between the managers present and the Complainant as an employee, dependent upon them for her continued employment. (p.284)

It was also proved unlikely that the two other managers present in the room did not hear the nature of the comments. The complainant had reasons to take this comment seriously because it harmed her self-identity at its core on the basis of her race. The hurtfulness of this comment was exacerbated by her recent experiences with Mr. Hopkins and Ms. Bishop. The comment is objectively offensive and constituted direct discrimination under the Act.

Finally, the Tribunal rejected the reasonableness of the employer's post-complaint response to the allegations, determining that MacLeod was "in a clear conflict of interest" in conducting the investigation. The Tribunal also identified significant flaws in the investigation, including failing to properly assess the evidence and failing to fully understand or clearly understand what constitutes discrimination, including that intention is not a necessary prerequisite.
 

Remedy

The Nova Scotia Board ordered Leon's to pay the complainant $8,000 in general damages for long-term injury to self-worth, as well as 18-months of lost earnings. Additionally, the Commission has requested that public interest remedies be ordered as follows:

1. Leon’s works with the Commission over a five year period to achieve employment equity for African Nova Scotian employees in Leon’s Nova Scotia stores.

2. Leon’s be trained in cultural competency in human rights as assessed and directed by the Commission; this training to include store managers, supervisors and all staff of Leon’s in Nova Scotia.

3. Leon’s works with the Commission to engage a restorative process to consider any harms to Dartmouth store employees resulting from the media surrounding this public inquiry. 2014 CanLII 16399 (NS HRC)

4. The costs of implementing these public interest remedies would be paid by Leon’s. (p.410)