A discriminatory event and subsequent retaliation will cost a Canadian business more than $18,000 following a recent tribunal decision
When Systemgroup Consulting paid for employees and clients to attend a ski event with the tagline “Bring your friends, bring your acquaintances, just don’t bring your wife!” the company excluded sales executive Sheryl McConaghie, but it did invite some of her male customers.
When McConaghie complained about the event neither her supervisor nor the company president thought it was inappropriate. After complaining, she found herself excluded from meetings and networking opportunities and eventually had her employment terminated. She filed a human rights complaint, alleging that the “Men’s Day” event was discrimination on the basis of sex, and that her termination was reprisal for exercising her rights.
The employer tried to argue that despite being excluded from the event, it was not discrimination because there was no negative impact on her. However, the Human Rights Tribunal of Ontario found that McConagie’s exclusion was discriminatory, because the purpose of the day was to strengthen customer relationships.
“By holding a customer appreciation event that excluded the applicant because of her gender, the respondent undercut the applicant’s ability to compete on the same playing field as her male peers,” the HRTO finding said. “It did so without apparent consideration of how her male clients might perceive her exclusion or how it might damage her working relationships; and it did so in a male-dominated industry.”
The Tribunal accepted McConaghie’s suggestion that her treatment following the complaint constituted a reprisal under the code. Systemgroup’s lawyers claimed long-term performance issues were the reason for her termination, but the Tribunal did not think the evidence provided was substantial enough to prove their case, especially considering the timing – just five weeks after her complaint about Men’s Day.
“The case is an important reminder to employers to be cautious with respect to the type of events that they sponsor and the importance of record keeping when performance managing employees,” McCarthy Tetrault lawyer Daniel Pugen said. “Notably, the employer did not have records of ongoing performance management, and the applicant’s sales data at the time of her termination suggested that her performance was improving.”
The HRTO awarded McConaghie damages including the ticket price of the event ($150), wages for her period of unemployment (amount not disclosed), and compensation for injury to dignity, feelings and self-respect ($18,000).
“Employers should keep detailed records of employee performance management,”Pugen said. “It is difficult for an employer to demonstrate that a termination is for a legitimate, non-discriminatory reason in the absence of properly maintained performance records.”