Following a two day hearing conducted by Inlet Law’s Nazanin Panah resulting in a $28,000 award, the BC Human Rights Tribunal (the “Tribunal”) has once again affirmed that disbelief is not a defence.
Facts
In the case of Singh v A & M Enterprise 2023 BCHRT 148, the Complainant commenced a proceeding against his former employer, a Vancouver-based pizza franchise (the “Employer”), alleging discrimination contrary to s. 13 of the Human Rights Code (the “Code”). Section 13 of the Code states that
13 (1)A person must not
(a)refuse to employ or refuse to continue to employ a person, or
(b)discriminate against a person regarding employment or any term or condition of employment
because of the Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
[emphasis added by the writer]
Specifically, the Complainant argued that his Employer discriminated against him following a workplace injury and subsequent medical leave.
The Employer relied on a number of defences, including disbelief in the Complainant’s injury. Ultimately, the Tribunal found that the disbelief itself grounded a finding of discrimination. The employer alleged performance issues as the basis for terminating the Complainant’s employment. However, the Tribunal found that it was implausible that the employer’s skepticism towards the Complainant did not play a role in the decision to terminate him without offering him an opportunity to address the alleged performance issues. Further, it was the Employer’s disbelief which led to discrete discriminatory conduct including sending another employee to visit (and effectively spy on) the Complainant and his family at his residence while he was on medical leave.
More broadly, the Tribunal reiterated that discrimination need not be intentional to be impactful, as noted at paragraph 79 of the decision:
[The Respondent Employer] questions how [the Complainant’s] disability could have been a factor in Mr. Danyal’s decision to terminate his employment in circumstances where Mr. Danyal plainly did not believe that [the Complainant] had a disability, either during his medical leave or after. This argument mistakes intention with impact. Discrimination does not have to be intentional: Code, s. 2. I accept that Mr. Danyal did not believe that [the Complainant] had a disability, but I have found that he did. Terminating his employment for reasons connected to that disability, without justification, is a violation of the Code.
[emphasis added by the writer]
Key Takeaways
For employees, this case is a reminder that one instance of discrimination could be enough to ground a complaint, and to be alert to discriminatory impacts.
For employers, this is an earnest call to communicate with employees, including listening to employees and their needs. Particularly when, as the Tribunal took notice of here, the trend for monetary awards continues to rise.