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Tribunal Calls False Start on Race

Whitten and Lublin | Jan 31, 2011

Daniel Lublin writes in the Metro about the recent dismissal of an assembly line worker who was quick to assume that all harassment is gender-based.

Donna Race worked as an assembly line worker in an auto plant – an area of work typically dominated by men.  She complained to management that the volume of the music being played was affecting her hearing.  After threatening remarks from co-workers, she decided it was time to take further action.

The Ontario Human Rights Tribunal dismissed her claim of gender-based harassment based upon two key points. (1) Although one employee had called her a “bitch”, this single act did not amount to discrimination, as it was never raised as a concern to management and the employee apologized (2) The basis of Race’s complaint, as the employer successfully argued, was not gender-based but volume-based.  Since Race was unable to prove that she was treated any differently based upon her gender, the case was dismissed.

It is important to recognize that not all offensive statements are acts of discrimination.  Workplace arguments should be brought to the attention of management before taking more drastic measures.  This case comes at a good time as it should remind employees of the recent changes to the Employment Standards Act.  As a part of the process, the Ontario government’s Open for Business Act now requires employees to inform employers of concerns before making a complaint.  The hope is that this requirement will help resolve cases like this one in the office instead of the Tribunal.