“It Don’t Matter If You’re Black Or White”*… It’s Illegal to Discriminate

In 1991, Michael Jackson’s hit single, “Black or White”, topped the Billboard Hot 100 just three weeks after its release.  Perhaps it was the universally positive anti-racism message, as much as the music itself that propelled its popularity.  Regardless, one would have thought that by 2018 it would have been well understood that the fact that an employee was white/Caucasian does not create a defence for an employer’s racist conduct.  Sadly, Spruce Hill Resort and Kin Wa Chan must not have been Michael Jackson fans.

In Eva obo others v. Spruce Hill Resort and Kin Wa Chan, 2018 BCHRT 238 the BC Human Rights Tribunal found that Spruce Hill and Chan discriminated against a group of white employees on the basis of race and colour, and that one of those employees had also been sexually harassed.  After Chan bought Spruce Hill Resort, he brought in employees of Chinese ethnicity to perform work that had previously been done by the white employees.  He also changed the white employees’ work schedules and reduced their hours.  The Tribunal found that he said words to the effect that Chinese workers are better and cheaper than white workers and “Chinese workers do not have to be paid holiday pay or overtime.”  Chan also commented that white people were too slow and Chinese workers were faster and did not complain.  The employees either resigned in the face of what they considered to be a toxic work environment or were fired.

Eva, one of the female employees, while travelling on a business in Hong Kong, was taken by Chan to a market that sold sex toys; and then, upon arrival at their hotel, Eva learned that Chan had booked only one room that he planned to share with her.  The room had only a glass divide between the sleeping area and the bathroom.  When Eva complained, Chan told her to “relax” and words to the effect that “in China, we do things the Chinese way”. It was only when Eva threatened to return to Canada if she did not have her own room that different arrangements were made.  Not surprisingly, the Tribunal concluded that as her male boss there was a power imbalance.  Moreover, the Tribunal stated that “he also exercised racialized power over her because he was a member of the majority in that foreign country”.

It is noteworthy that the Tribunal also concluded that some of the employees who had resigned were actually constructively dismissed due to the discriminatory work environment in which they were required to work; they were therefore entitled to leave their employment and were still entitled to compensation for lost wages.  That conclusion did not apply to one of the employees who had only passing exposure to Chan’s discriminatory behavior.  The following comments by the Tribunal aptly demonstrate the underlying policy that is the purpose of human rights law:

… I acknowledge that the Complainants are not members of a group that has been historically discriminated against. Racial harassment has typically been found in the context of wider patterns of social inequality and the subordination of already disadvantaged groups . . . Nevertheless, the Complainants have been subjected to a poisoned work environment due to racism. On top of that they experienced this in a small community where there are few alternatives to escape the poisoned work environment. Racism is always insidious particularly when it affects people in their workplaces. People are “particularly vulnerable” in their employment and “employees, in the context of their work, are a captive audience to those who seek to discriminate against them”: . ..   As observed by the Supreme Court of Canada: “the structure of the Code supports an approach that views employment as a context requiring remedy against the exploitation of vulnerability”  . . .

Spruce Hill and Chan were ordered to pay the Complainants, in total, more than $173,000 (approximately $113,000 in lost wages and $60,000 for injury to dignity damages), plus interest.  The injury to dignity awards ranged from a high of $18,000 to a low of $3000, notwithstanding that all of the employees lost or left employment due to similar discriminatory conduct.

Lessons for Employers

• Human rights law exists, in part, to protect employees’ vulnerability at work. Employers should strive to ensure that their workplaces are free of racism (indeed all forms of discrimination), regardless of the group to whom it is directed; and, should ensure that clear anti-discrimination policies exist and employees are regularly reminded of their obligations toward one another.
• A discriminatory work environment may create circumstances that lawfully permit an employee to leave, and could give rise to a claim that their employment has been constructively dismissed. In the Spruce Hill Resort case, the employees were subjected to discrimination on the basis of race and colour.  The Code also protects employees from discrimination on numerous other grounds, such as ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age, or because that person has been convicted of (or charged with) a criminal or summary conviction offence that is unrelated to their employment or to the intended employment of that person.  Depending on the circumstances, discriminatory conduct related to any of these prohibited grounds could create a poisoned work environment such that constructive dismissal may be established.
• Listen to Michael Jackson’s lyrics . . . there may be wisdom in those words.

(*Black or White  © Sony/ATV Music Publishing LLC,Downtown Music Publishing; Words and music by Michael Jackson and Bill Bottrell)