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Employment & Labour, Human Rights

Racial discrimination claim over lack of 'demotion' tossed out

The Human Rights Tribunal of Ontario has dismissed a claim that alleged racial discrimination against a company after a woman was not offered a position that her employer saw as a “demotion,” says employment lawyer Natalie MacDonald, who successfully defended the employer.

In George v. AccertaClaim Servicorp Inc., 2016 HRTO 107 (CanLII), the applicant, a woman in her early 40s of South Asian descent, claimed she was not offered a position that was given to a 'young white woman' who reported to her.

"This offer would have been a step down for the applicant, from her management position to administration, which would effectively be a demotion from the applicant’s managerial role," says MacDonald, co-founding partner of Rudner MacDonald LLP, and author of Extraordinary Damages in Canadian Employment Law.

The woman said she was, instead, left in the part of the company's business that was being phased out, according to the tribunal’s written decision.

“The applicant argues that this position was one that would have put her on a path to senior management within the respondent organization and she was denied that opportunity,” the decision reads. “It was given, instead, to someone who was less experienced because the other candidate was younger and not a member of a racialized group. The applicant argues that this is a case of ‘systemic discrimination.’”

In the end, however, the tribunal chair was not persuaded by the evidence put forward by the complainant.

“The mere fact that another person in the respondent company is promoted into another position does not lead inevitably to the conclusion that the applicant is being disadvantaged or harmed as a result,” the decision reads, “particularly if, as is the case here, the transfer would amount to a demotion.”

MacDonald says she still does not understand why the employee considered the other worker’s promotion to be differential treatment, given that it would have been a demotion.

“She was never to have been considered for the job by the company for that reason,” MacDonald tells AdvocateDaily.com.

“Had the company put her in that position, we likely would have been defending a constructive dismissal case — and one based on discrimination.”

The complainant had actually been promoted every year, receiving a salary bump of more than $20,000 over the course of a little more than two years. At the time of her resignation, she was making $67,500 as a manager of group administration at the company which manages claims for the Ontario Dental Association. 

The parties agreed she was a good employee, received excellent performance reviews and rose through the ranks quickly.

She voluntarily resigned in December of 2012, only raising the issue of discrimination for the first time during an exit interview in January.

MacDonald says her client was “absolutely gobsmacked,” by her allegations, and very hurt, given all that they had done to promote her during her employment. She says it’s still unclear to her why the woman believed she was a victim of discrimination.

“There was no intent whatsoever to discriminate against her. In fact, the evidence was to the contrary, as it demonstrated that if she had remained with the company, she would continue to have been promoted,” MacDonald says.

The applicant insisted the workplace consisted of white managers and racialized lower ranks of employees, but the applicant herself worked in management, which MacDonald argued therefore completely discredited her claim.

The case demonstrates the importance of having solid evidence before employees raise potentially damaging allegations against their employers, she says.

“Employees need to think very carefully before they enter into any litigation and particularly, in a human rights case where not only are allegations of discrimination and harassment very serious, but also very hurtful to the employer, as they were to Accerta in this case,” MacDonald says.

“Accerta is an employer, which upholds the right to be free from discrimination and harassment in its workplaces, and works hard to encourage its employees to succeed. In this case, the evidence was clear that Accerta was extremely desirous of promoting this woman based on her skills, and did not view her in terms of race or colour.

“In my view, this is a case that should never have entered the courtroom. It never should have been filed in the first place.”

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