Human Rights Office

Human Rights Office
Human Rights Office

Nwagbo v. Li

 

Summary

The respondent was the owner of Top Choice Tax Accounting Inc., a full-service accounting firm that had five employees. In October 2015, the respondent reached a two-year agreement with a U.S. based company, New Client Inc. (“NCI”), to participate in their Client Acquisition Program. Pete Borrelli, NCI Senior Account Executive, was responsible for providing advice to Top Choice on activities such as client recruitment, training, human resources and other operational matters.

The respondent hired the applicant on January 25, 2016, in the position of Client Service Representative (“CSR”). The CSR was responsible for conducting recruitment or marketing activities with prospective clients. The applicant began his employment with Top Choice on January 25, 2016. He signed a contract of employment on that same day outlining his roles and responsibilities, which included to make presentations to potential clients each week and attempt to secure a minimum of two new clients per week.

The applicant testified that during his recruitment interview and his first few meetings with the respondent, he told her he did not like conducting telephone cold calls, but that he was fine with attending in-person pre-set appointments and conducting in-person cold calls. The respondent’s testified that the applicant did not mention this during his interview.

The respondent trained the applicant by sharing with him her experience of what she knew of the Client Acquisition Program since Mr. Borrelli was not available to meet in person. The applicant testified that he never received a performance review. However, he spoke with the respondent regularly, often daily, and submitted weekly reports to the respondent.

The respondent testified that the applicant’s performance was very weak from the beginning. According to the respondent, the applicant would spend two to three hours a week at pre-scheduled meetings, but in his spare time would not engage in prospecting activities.

On March 4, 2016, the respondent asked for advice by email from Mr. Borelli about the applicant’s performance:

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 a 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. […] (p. 22)

Mr. Borrelli replied with a couple of suggestions, and on March 5, 2016, the respondent forwarded the string of emails to the applicant.

The applicant testified that the March 4, 2016 email impacted him psychologically. He continued to attend work but said he lost sleep over the email, although he did not seek medical attention nor did he mention anything to anyone in the workplace.

The applicant was not performing to expected standards, which resulted in significant financial hardship for the respondent’s business. The applicant was not meeting the sales quota of recruiting two new clients per week and was bringing in less income than his remuneration. On April 17 the respondent terminated the applicant’s employment while he was still on probation.

On April 21, 2016, the applicant sent the following email to the respondent:

In an email you sent to Peter Borrelli on March 4, 2016, you wrote, amongst other things as follows: “(That 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.” The big and tall African man you were referring to is myself.

I have a couple of questions for you.

1. What is the stereotype you were referring to?

2. What issue or issues would people have with me being a big and tall African man? Are you suggesting that I am scary or that “people” would not deal with me simply because I am a “big and tall African man”?

This statement alone and on it’s own is racially discriminatory Beyond that, it is defamatory because you published it to Peter Borrelli - a third party.

Based on the foregoing, I am putting you on notice that unless I receive a cheque from for in the sum of $20,000.00 in redress for your unwarranted racial profiling and defamation, I will not only file a petition against you with the Human Rights Commission of Ontario, but will also file a claim for further damages against you in court.

The respondent testified that she perceived the April 21, 2016 email as blackmail and did not respond.
 

Questions to be Determined and Findings

1. Was the Applicant discriminated against on the basis of race during his employment at Top Choice? (YES)
 

Reasoning

1. It is indisputable that the respondent looked for advice from Mr. Borrelli because she was not happy with the applicant’s performance, and that the respondent she assumed the applicant did not engage in in-person cold calling.

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. (p. 44)

The respondent presented evidence to indicate that the applicant’s performance was consistently weak before and after the March 4, 2016 email, and explained that she knew that Mr. Borrelli had never met the applicant and she was trying to explain to him why she thought the applicant was not doing in-person cold calls.

Additionally, instead of supporting and assisting the applicant so he could improve his performance, the respondent shared her stereotypical views with Mr. Borelli and also forwarded the offensive email to the applicant. “The incident is further aggravated by the views having been made in writing in an email exchange that other employees had access to.” (p. 46)

The judge found probably that the respondent did not have the intent to discriminate against the applicant, but rather tried to find an explanation to his poor performance. However, the intent is not required to establish discrimination; rather the focus is on the impact or effect of the conduct. The Tribunal then stated:

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…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. (p. 47)
 

Remedy

The Ontario Human Rights Commission determined that the respondent shall pay $2,500.00 to the applicant in monetary compensation for injury to his dignity, feelings and self-respect.