Can a Few Isolated Comments on an Employee’s Appearance Amount to Discrimination?

In The Sales Associate v. Aurora Biomed Inc. and others (No. 3), 2021 BCHRT 5, The BC Human Rights Tribunal awarded a sales associate $20,000 for injury to dignity, feelings and self-respect after being terminated for raising a sexual harassment complaint and experiencing discrimination at her workplace.

Facts

A sales associate for Aurora Biomed alleged that the founder, Dr. Liang, made comments about her appearance that made her feel uncomfortable and degraded. Comments included calling the sales associate “beautiful girl” or “beautiful lady” instead of using her name, and telling her to smile more.

During her employment, the sales associate complained to her supervisor, Dr. Liang’s daughter, about Dr. Liang’s actions and that his conduct “could come across” as sexual harassment. A meeting later that month was held between the sales associate, her supervisor, and Dr. Liang.  In that meeting, Dr. Liang accused the sales associate of defaming him and asked her to sign a statement affirming that he had not assaulted her. Following this meeting the sales associate was fired.

Dr. Liang denied ever making comments about the sales associate appearance, and the other allegations. The Respondents also said the decision to terminate the sales associate’s employment after the meeting had nothing to do with her sex or the prospect that she may file a complaint.

Issue

Did Dr. Liang’s comments adversely impact the sales associate in her employment because of her sex?  Was sex one factor in the termination of the sales associate’s employment?

Analysis

The Human Rights Code protects a person from adverse treatment or impact in a person’s employment that is connected to their sex. To prove discrimination a person has to prove that: (1) they have a characteristic protected by the Code, (2) they experienced an adverse impact with respect to an area protected by the Code, and (3) that the protected characteristic (sex) was a factor in the adverse impact.  The focus of the analysis is on the effect, rather than the intent, of the respondent’s actions. 

The Tribunal Member grappled with credibility issues but concluded that Dr. Liang occasionally called the sales associate “beautiful girl” or “beautiful lady” and commented that she should smile more.  This caused the sales associate to feel degraded in her employment and it worsened her employment situation. While the Tribunal Member found the comments were not inherently sexual and rather misguided attempts to be friendly, they were nonetheless discriminatory.  The Tribunal Member found these comments in general reinforced the disadvantages faced by women in their workplaces:

[116]      Women have long fought for the right to be evaluated on their merits. One persistent barrier to that goal is the conflation of a woman’s worth with her appearance. Society continues to impose expectations on women to be pleasing to the people around them, particularly men. Their appearance and outward manner are important components of that. While telling a woman to smile may feel like harmless banter, it imposes a burden on her to please people in a way that is disconnected from the tasks of the job, and the skills she brings to it. Calling her “beautiful” or commenting on her appearance reinforces the message that her value is in how she is seen by others and not in the strength of her ideas, her skills, and her contributions to the work. And finally, calling a grown woman a “girl” in the context of her employment infantilizes and patronizes her. It signals that she is not an adult worthy of being taken seriously in their profession. Most often, these are not burdens or messages shared with men. The impact of this type of behaviour is to subtly reinforce gendered power hierarchies in a workplace and, in doing so, to deny women equal access to that space.

In the context of this case, the effect of Dr. Liang’s belittling comments were found to be discriminatory against the sales associate based on her sex.

The Tribunal Member then considered whether the sales associate’s sex was a factor in her termination. The Tribunal Member found the Respondents’ harassment policy lacked important details and the Respondents did not properly understand their legal obligations under the Code.  The Tribunal Member did not accept the Respondents’ claim that the termination was based on her poor performance.  Rather, the timing of the termination and subsequent actions taken to try to protect Dr. Liang and his company revealed that the reason for the termination was based on her complaint of sexual harassment.  As such, the Tribunal Member held the Respondents violated ss. 13 and 43 of the Code.  

The Tribunal Member found the contraventions had a serious impact on the sales associate as she was humiliated, hurt, and she lost her job.  The Tribunal Member awarded the sales associate $3,107.17 for wages lost and a further $20,000.00 for injury to dignity, feelings and self-respect.  The Respondents were also ordered to develop and implement an anti-discrimination and harassment policy.

Takeaway

This is an important reminder for employers to have and implement an appropriate anti-discrimination and harassment policy in their workplace.  Employers are required to respond reasonably and appropriately to complaints of discrimination and where an employer fails to respond reasonably, that failure can amount to discrimination.  This decision is also important to demonstrate how a complaint will be assessed based on the circumstances and, comments or conduct that may not be intended to be discriminatory can have that effect. In certain contexts, this can result in significant injury to dignity awards that have continued to increase in recent years.  

This update was authored by Brett Weninger. Looking for more information regarding similar issues? Contact Brett at [email protected] or anyone else listed on the authors page.