***PLEASE BE AWARE THAT THIS CASE CONTAINS EXTREMELY VULGAR LANGUAGE.

In the case of Cheryl Khan v. 820302 Ontario Inc. cob as Lynx Trucking Co. Transportation and Leasing and Lynn Thompkins which can be found here. The trucking company was ordered by the Human Rights Tribunal to pay $25,000.00 to the Applicant for a violation to her impairment right to be free from discrimination and harassment and for injury to her dignity, feelings and self respect.  In this case, the Applicant Khan began working for Lynx Trucking in September 2007.  The Applicant testified that Lynn Thompkins, the personal Respondent, would on a daily basis swear and yell at her about her work.  Khan testified that she would constantly belittle her by calling her stupid, ignorant and uneducated.  She testified that she would aggressively hit her desk with her fists and throw office supplies.  She testified that she made explicit racial comments specifically to her and in reference to other racialized persons including employees.  She testified that she routinely called her a “paki” or referred to her as “that Indian”.  Eventually, she testified, that comments were made on a daily basis.  She also testified that she made general comments of persons of East Indian origin, saying that they were stupid, ignorant and that nobody would hire them.  She testified that she called her a stupid immigrant.  The Applicant stated that the Respondent would also tell her that she was lucky to have a job and she should be grateful.  Even more shocking was that the Applicant testified that the personal Respondent was aware that her two children, ages 11 and 13, had a black father and she would describe them as her “half-nigger babies” or would tell her such things as “that’s what you get for sleeping with a nigger”.  She also testified that her employer would say that “those fucking Indians did not want to work”.
With respect to work performance, Khan testified that the Respondent was inconsistent in her demands and expectations and there was no written company policies or procedures in place to indicate what was required or what was expected of her in her job.  While the Applicant believed that she was qualified for the position the personal Respondent, rather, testified that she would not always arrive at work 10:00 p.m. as was expected, she would play solitaire on her computer and she would visit Facebook on company time.  She often used the company issued cell phone for personal telephone calls and she had a practice of not showing up on Mondays.  Ultimately the Applicant was terminated from her position.  Various witnesses testified at this Human Rights Tribunal hearing with respect to the issue of racial discrimination and harassment.  One former worker noted that the personal Respondent was an abusive boss who often yelled at her staff and her treatment of staff she believed constituted verbal harassment.  She testified that she had never worked in such an environment.  This particular witness testified that some of the comments made to her by the personal Respondent were deliberately demeaning and explicitly anti-immigrant.  She recalled the personal Respondent calling the Applicant “a paki” on two separate occasions.  She never heard the term “nigger”.  This first witness ultimately quit her job with a resignation letter noting that she was no longer able to endure the harsh verbal abuse and constant harassments and the constant racial comments by the employer.

A salesman testified and also confirmed that the personal Respondent used to use regular terms such as paki, Indian and nigger.  He suggested that the personal Respondent used the word nigger almost everyday and recalled the Respondent using the word nigger with a black employee, who according to this witness, went ballistic in response.  He specifically heard the personal Respondent use the work paki approximately fifty times but did not recall him making a reference to the word nigger in relation to the Applicant and her children.  Another witness testified that she often heard the boss using the f-word but never heard any racist comments.  Another witness testified that the personal Respondent would occasionally swear but that she never heard racist, sexist or demeaning comments from the personal Respondent that would be discriminatory in the place of employment.  Another witness testified that the personal Respondent would constantly yell and swear at employees but he had never heard her use any discriminatory comments.  Another witness testified that he heard the personal Respondent yell on occasion but not swear.

The analysis and findings of the Human Rights Tribunal was predictable.  The Human Rights Tribunal obviously relied on the issue of credibility.  They found that certain witnesses were very credible with respect to the racial name calling, and in particular the woman who resigned by letter because of the abusive behavior.  By contrast the Human Rights Tribunal found that the personal Respondent and her witnesses provided inconsistent testimony regarding the nature of the personal Respondent’s anger in the way she treated staff.  The Tribunal found that these witnesses were attempting to hide aspects of the personal Respondent’s behavior, most particularly her use of racial comments, and present them in a more favourable light.  The Tribunal then went over the testimony of the Applicant and her witnesses which the Tribunal described as clear and unproblematic.

So what was the outcome?  The Tribunal found the racial terms were offensive, and given the nature of the terms the employer should have known that they were unwelcome.  The Tribunal was satisfied that the personal Respondent repeatedly harassed the Applicant and this obviously constituted a violation of both Sections 5(1) and 5(2) of the Human Rights Code.  With respect to her job, the Tribunal was of the view that although the personal Respondent and Applicant repeatedly argued over the Applicant’s job performance, the personal Respondent’s ongoing verbal harassment of the Applicant indicated that she saw the Applicant as inferior and less capable because of her colour, race and ethnic origin.  The Tribunal found that the personal Respondent’s constant, and what can only be described as deliberately cruel references, to the Applicant being a paki, having slept with a nigger and having half-nigger babies to being indications that the personal Respondent considered the Applicant inferior in her personal behaviour objectionable.  The Tribunal also found the personal Respondent’s references to the Applicant being a paki, and a person who is stupid, ignorant and uneducated to be indications that the personal Respondent considered the Applicant’s work performance to be related to her race, colour and ethnic origin.  Therefore, the Tribunal found that the claim that the Applicant was a poor performer because of her unwillingness to accept the personal Respondent’s directions was inextricably linked to the personal Respondent’s racism and racial treatment of the Applicant.  The Applicant’s race, colour and ethnic origin were a factor in the termination of her employment.

The Tribunal set out the remedial powers of the Human Rights Tribunal under Section 45.2.  Monetary compensation was awarded in the amount of $25,000.00 to the Applicant to compensate her for the injury to her dignity, feelings and self respect arising out of the infringement of the Code. Further, she was awarded $6,750.00 in lost wages and that the Respondent, at its own expense, engage in the services of a Human Rights expert to assist in the development and implementation of a Human Rights and anti-harassment policy for the organization within 6 months from the date of the Order.  Training was to be provided to the personal Respondent and with respect to Human Rights and anti-harassment policies and Human Rights Law, racial harassment and how to administer the provisions and organizational Human Rights and anti-harassment policies.