What questions does a Tribunal ask itself when considering whether a college has responded adequately to a student’s human rights complaint?
Ms Baker, who describes herself as First Nations, had been employed in housekeeping at the respondent College for nine years when the following isolated incident occurred. In August 2010, during a lunch break, her manager made several “derogatory” and “inflammatory” and statements about First Nations peoples. Ms. Baker, who had been removed from her family and placed in a residential school at a very young age, was very offended and hurt.
The College responded quickly, taking the following actions:
While Ms Baker agrees that the steps taken by the college were sufficient, she remained unsatisfied. She maintains that the steps taken by the College did little to correct Ms. Nelson’s attitudes, to alleviate her mental distress, to provide adequate work accommodation. Deeming the college’s response to be “inadequate and ineffective”, Ms Baker filed a complaint with the Tribunal, requesting the following orders:
Should the Tribunal take on this case?
The Tribunal emphasized the “importance of encouraging parties to resolve matters internally and in a manner reflective of the purposes of the Code”  and underscored that “absent any extenuating circumstances, when an employer or service-provider responds promptly and appropriately upon becoming aware of a potentially discriminatory situation, it would not further the purposes of the Code to proceed with a complaint against that respondent.” It reminded the parties that the standard to meet in human rights processes is not perfection but rather reasonableness. With these principles in mind, it used the following criteria to determine that the college’s response was adequate:
While the manager’s conduct was discriminatory, and therefore serious, it was limited to a set of offensive comments made on one informal occasion. The complainant did not face any negative job action (loss of wages, employment or other costs) and she did not allege that the comments reflected the attitudes of the employer or that they demonstrated a systemic barrier against First Nations persons at the College. The respondent acknowledged the discriminatory conduct, as did the manager. The College embarked upon a human rights resolution process that was “responsible, sensitive, prompt and proportionate”. While the remedy was not perfect (because it involved the modification of Ms. Baker’s job duties so as to separate her from the manager), Ms. Baker did give her consent. In the end, the Tribunal determined that a hearing would not have come up with any new remedies except, perhaps, for the award of monetary damages. It found that the cost of holding a hearing greatly outweighed the monetary damages that Ms. Baker might receive.
 “Ms. Baker says that the topic of conversation was people's nationality and what languages they spoke fluently. During this conversation, she says that Ms. Nelson asked her whether she spoke her First Nations language. Ms. Baker says that she replied she did not because she was taken from her family and placed in a residential school during her childhood. She says that Ms. Nelson then spoke in derogatory and inflammatory terms about several matters involving First Nations people, including Ms. Nelson's niece (who has some First Nations heritage), the closure of a geoduck fishery and the "dirty" condition of First Nations lands and a longhouse she had visited. Ms. Baker stated that Ms. Nelson used several expletives and generally exhibited a stereotypical attitude toward First Nations people.”
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