The Ontario Human Rights Tribunal has found that an employer discriminated against a female employee on the basis of sex by sponsoring a customer appreciation event that was for men only. The tribunal also found that the employer retaliated against the employee after she complained about the event to her supervisor.
The case, In McConaghie v. Systemgroup Consulting Inc., is an important reminder to employers to be cautious with respect to the type of events they sponsor and the importance of recordkeeping when performance managing employees.
Throughout her employment, the worker was the only female sales executive. The employer designed customized computer applications, an industry the tribunal recognized as male-dominated.
The employer sponsored a customer appreciation day that was for men only. It paid for male employees and clients to attend a ski event called "Men’s Day," where the brochure advertised "A Day for Men Without Women and Children" and the tagline was "Bring your friends, bring your acquaintances, just don’t bring your wife!" The employer’s electronic calendar invitation to the event listed planned activities including: "massage" and "Hooters Girls."
The applicant was not invited to "Men’s Day" because she was a woman, and was informed of the details of the event from one of her male customers. She complained about the event to both her immediate supervisor and the company president. Neither found the gender-exclusive event to be inappropriate.
Following her complaint, the worker was excluded from important meetings and networking opportunities and eventually her employment was terminated. She filed a claim with the tribunal alleging that her exclusion from "Men’s Day" constituted discrimination on the basis of sex and her termination — and the events leading up to it — amounted to reprisal for exercising her rights under the Ontario Human Rights Code.
Exclusion from 'Men’s Day' was discriminatory
The tribunal found the worker’s exclusion from "Men’s Day" constituted discrimination on the basis of sex.
The employer argued that while the applicant was indeed excluded from "Men’s Day" because she was a woman, the exclusion had no adverse or negative impact on her and therefore did not amount to discrimination under the code. However, the tribunal found the purpose of "Men’s Day" was to strengthen relationships between the employer’s sales associates and their customers.
"By holding a customer appreciation event that excluded the (female sales associate) because of her gender, the (employer) undercut (her) ability to compete on the same playing field as her male peers. 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. In other words, its behaviour perpetuated the belief that supporting women sales professionals in interacting with clients is less valuable or important than supporting male sales professionals," said the tribunal.
Termination was a reprisal
The tribunal also found the employer’s behaviour following the worker’s complaint about "Men’s Day" constituted a reprisal under the code.
Immediately following her complaint, the applicant began to be excluded from important meetings and networking opportunities. The employer offered no alternative explanation for these events and as a result the tribunal accepted the worker’s contention that her exclusion was related to her "Men’s Day" complaint.
The employer terminated the worker’s employment five weeks after her complaint. The tribunal held that while there was no direct evidence of intent to retaliate, the proximity between the complaint and the termination was sufficient to establish an adverse inference — an inference the employer could not explain away.
The employer argued the termination was in response to the applicant’s long standing performance and productivity issues. The employer provided some evidence with respect to the applicant’s performance levels. However, the ribunal felt it was not enough to substantiate a credible alternative explanation for the termination, especially in light of the timing. Notably, the employer did not have records of ongoing performance management, and the worker’s sales data at the time of her termination suggested her performance was improving.
The tribunal awarded the lost value of the "Men’s Day" event ($150 ticket price), wages for the worker’s period of unemployment, and damages of $18,000 as compensation for injury to dignity, feelings and self-respect.
• Employers need to be cautious with respect to the type of events they sponsor, particularly where access to the event is limited to certain types of employees or customers.
• Employers should keep detailed records of employee performance management. 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. This is particularly relevant in the case of employees who have filed internal complaints — without performance records, employers are vulnerable to an inference that any subsequent discipline or termination constitutes reprisal.
For more information see:
• McConaghie v. Systemgroup Consulting Inc., 2014 HRTO 295 (Ont. Human Rights Trib.).
Daniel Pugen is a partner with McCarthy Tétrault's Labour and Employment Group in Toronto. He can be reached at (416) 601-7955 or firstname.lastname@example.org. Meaghan McWhinnie is an associate with McCarthy Tétrault's Labour and Employment Group in Toronto. She can be reached at (416) 601-7882 or email@example.com.