A recent Federal Court decision reviewed an employee’s complaint of discrimination based on sexual orientation and disability against a major Canadian bank. The employee claimed, in part, that a manager told him he would not be promoted unless he was gay.
The employee worked for a major Canadian bank as a financial services representative. His work involved calling sixty to seventy customers every day to sell them products, which required him to read 4-6 pages of product information and legal disclosures.
The employee filed a complaint with the Canadian Human Rights Commission (the “CHRC”) in April 27, alleging discrimination by the bank because of his sexual orientation and disability, resulting in his eventual termination on May 10, 2016.
Regarding his sexual orientation, the employee alleged that he had a one-on-one meeting on September 15, 2015 with his manager to discuss his medical concerns and qualifications.
During the meeting, the manager advised him that unless the employee joined their “group”, there was “no hope” for him. The manager explained that every male manager in both his office and headquarters was either gay or bisexual and he advised the employee this was why young employees with few qualifications were promoted. He advised that the employee should “be smart and learn”. The manager then allegedly asked the employee what he thought of him. The employee responded, stating that he thought of the manager as just his manager; he was willing to work with anyone at anytime but he was not gay or bisexual. The manager allegedly requested that the employee never discuss their conversation with anyone.
As a result, the employee believed the encounter was the primary reason for his discrimination and explained why, despite his qualifications, experience, and excellent performance, he was denied workplace accommodation for his disability, and not offered any alternative position. He also stated that the encounter added to his mental stress and negatively impacted his self-dignity.
With regards to his disability, the employee explained that due to several months of continuous outbound calling under a high stress environment, he developed severe throat and vocal cord pain. The employee claimed that his family doctor recommended modified duties, including not speaking on the phone, to help his pain.
The employee alleged that despite his own doctor’s recommendation and his qualifications, experience, and excellent performance, the bank refused to accommodate him by offering him another position. Instead, his senior manager asked him to go on short-term disability. The bank referred him to a specialist, who concluded that the employee suffered from “muscle tension disphonia” and advised that the employee required accommodation, including regular medical breaks, to achieve maximum recovery.
The employee alleged that the bank started to discriminate against him soon after the specialist’s diagnosis. Among other things, his basic pay was cut and he was not given any sales incentives or annual bonuses under this standard evaluation scheme because his disability required he take essential medical breaks, which neither his daily statistics nor his managers properly took into account.
He was eventually terminated.
In his complaint, the employee requested reinstatement in a suitable position that matched his qualifications and experience, full back pay and benefits, and monetary compensation.
The CHRC’s investigator dismissed the employee’s complaint, finding, in part, that the employee did not provide sufficient evidence to support his allegations of discrimination due to sexual orientation to justify any additional investigation. The investigator also found that the evidence supported that the bank had accommodated the employee for his disability because he received short-term disability leave and benefits and modified work for as long as it was medically required.
The employee appealed to the Federal Court. The employee claimed that the CHRC investigator failed to consider crucial evidence related to discrimination on the basis of sexual orientation and disability when writing her report. Additionally, the employee alleged that the Commission never examined his evidence. He explained that he raised his concern that the investigator failed to conduct an investigation into his sexual orientation complaint and failure to be interviewed for other positions in his reply submissions, and that the Commission failed to follow up on this and instead erroneously adopted the investigator’s report on its face without justification for doing so.
Federal Court Decision
The court explained that, as part of the entire CHRC complaint process, prior to making a final decision, the Commission reviews not only the investigator’s report, but also parties’ submissions in reply. Therefore, the Commission’s procedural fairness obligations extend to the Commission’s consideration of parties’ reply submissions.
The court found that the investigator had not properly investigated the employee’s claims of discrimination and that the Commission had accepted the investigator’s report without properly reviewing the evidence or reply submissions.
Accordingly, the court found that the CHRC’s investigation and decision were not procedurally fair and ordered that the matter be returned to the Commission to conduct a fresh investigation, with a different investigator.
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