B.C. worker who was terminated after reporting homophobic slur awarded $10K in discrimination case

A B.C. Human Rights Tribunal hearing room is shown in this file image from March 29, 2010. (THE CANADIAN PRESS/Darryl Dyck)

A gay man who was terminated by his employer after reporting a co-worker for using a homophobic slur has been awarded $10,000 by the B.C. Human Rights Tribunal.

The worker filed a discrimination complaint with the tribunal in 2021, after losing his part-time job at B.H. Allen Building Centre Ltd., which is a family-owned home improvement store that operates under the banner of a major retail chain.

A decision in the case was posted online last week.

Worker’s identity protected

The man, who immigrated to Canada from Iran, is not named in the decision after the tribunal agreed to a publication ban on account of potential risks to his safety. He is referred to throughout as Employee R.

“Homosexuality is illegal in Iran, and punishment may be as severe as death. Employee R is concerned that publication of his personal information in association with the facts in this complaint could put him and his family at risk of significant danger,” tribunal member Theressa Etmanski wrote.

“I accept that this threat of harm is not theoretical.”

The tribunal heard Employee R worked Saturdays and Sundays at the store, while working in another “professional occupation” on weekdays. It was on one of these weekend shifts when a co-worker allegedly uttered the slur.

‘Go f**k yourself’

“This employee was reportedly sixteen years old. Employee R alleges that in the interaction which followed, the teenage employee said to him: “Go f**k yourself f****t,” the tribunal’s decision said.

Employee R told the tribunal it was common knowledge that he was gay because his boyfriend also worked at the store, and neither of them hid their relationship or their sexual orientation. Both Employee R and his boyfriend told the tribunal their experiences with homophobia in Iran coloured their reaction to the incident.

The employee sent an email to Stephen Allen, one of the business owners who was also responsible for human resources, roughly three days after the incident with the teenage employee.

“The email explained that the teenage employee’s remarks were made ‘with rage and anger’ and included a sentence that Employee R does ‘not feel safe’ around the teenage employee,” the tribunal’s decision said.

Employment terminated

That same day, the employee was informed his next two scheduled Saturday shifts—days on which the teenage co-worker was scheduled—had been cancelled. Five days after that, Employee R followed up to ask why the shifts had been cancelled and three days after that he was informed he was being let go.

“Stephen Allen terminated Employee R’s employment during his probationary period, stating: ‘It has been determined that we are unable to meet your personal shift expectations.’ Employee R was told to collect his personal items from the store premises immediately,” according to the tribunal decision.

To prove discrimination in contravention of B.C.’s Human Rights Code, a claimant has to establish three things: that they have a “protected characteristic;” that they experienced an “adverse impact;” and that their protected characteristic was a “factor” in the adverse impact.

The fact Employee R is gay and that the law protects him from discrimination in employment on the grounds of sexual orientation was not in dispute. However, the employer argued the other two parts of the legal test had not been met.

Loss of anticipated income

Because Employee R undisputedly had his shifts reduced and lost his job, the employer’s argument there was no adverse impact was “untenable,” Etmanski wrote.

“The loss of a regularly scheduled shift is a reduction in hours and amounts to a loss of anticipated income, which negatively impacts an employee who relies on that income,” the decision said.

On the matter of whether Employee R’s sexual orientation was a factor, the employer made several arguments that it was not.

Allen testified an internal investigation was done but there was insufficient proof the teenager had used the slur as reported, and that even if it had been uttered it was not homophobic, according to the decision.

“I am not persuaded by either argument,” Etmanski wrote, adding she preferred Employee R’s evidence on the matter of whether the incident occurred.

“I am satisfied that the teenage employee did direct a homophobic slur at Employee R. This is self-evidently connected to Employee R’s sexual orientation.”

Still, the decision noted that a single incident of “harassing behaviour” by one co-worker directed at another is not always or necessarily enough to establish an employer is in violation of the Human Rights Code.

“My findings of discrimination relate to the respondents’ conduct following Employee R reporting the incident,” Etmanski wrote.

The employer told the tribunal Employee R’s shifts were cancelled at his request but that argument was rejected by the tribunal.

“I find Employee R did not request a shift change. Employee R reported an incident of possible workplace discrimination and the impact it had on him. It was the (employer) who chose to deal with that report by decreasing his shifts and ultimately terminating him,” Etmanski wrote.

While an employee can let a worker go during a probationary period without cause, the rights and obligations set out in the Human Rights Code can’t be waived or disregarded, the decision said.

‘It left him in shock’

Employee R was awarded $10,000 in compensation for injury to dignity, feelings, and self-respect due to the severity of the discrimination and its impact.

“Regarding the effect on Employee R, he testified that he was particularly impacted by these events given his traumatic history with homophobia in Iran,” the decision said.

“He stated that as an immigrant to Canada, he never expected to experience something like this here, and it left him in shock.”

Employee R was also awarded $877.50 as compensation for a month’s worth of lost wages.

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