Race discrimination can be challenge to prove
Li worked with a senior operator, who he said was nice to all of the white truck drivers but negative, rude and hostile to him. He said the senior operator shouted at him and did not respect him. One day he was eating his lunch and the senior operator said “so stinky, are you eating chinese food?”. Li claimed that when he was terminated he was told that it was because the company lost a contract and there was no more work, but he disputed that as being the real reason. He thought the senior operator had it in for him because of his race.
The company’s version of events was quite different. Li was hired by the same manager that terminated his employment. The manager swore that the senior operator had nothing to do with the decision to terminate Li. He was terminated because he had failed to follow a number of important safety protocols and his performance was just not up to par. He denied categorically having told Li that the company had lost a contract. Company contracts are extremely confidential and he would never have shared that information with anyone. The manager said he followed the usual practice of not providing a reason.
Li never complained about the conversation with the senior operator in the lunch room when he worked for the company and the senior operator denied having called Li stinky. He said that he simply asked if Li was eating chinese food and said it smelled good. The senior operator was eating indian food that day. He said he was just trying to be friendly with Li. In order to succeed, Li did not have to prove that the entire reason for his termination related to his race but that at least part of it did. That is enough to trigger the protection of the Human Rights legislation. Li did not succeed.
The Adjudicator decided that even if the senior operator had said the word “stinky” that could easily relate to what the senior operator thought of the smell of Li’s food rather than anything to do with race. If it was some sort of racial reference, it was an isolated incident that was not repeated and which did not provoke an immediate complaint from Li. There was no evidence to contradict the manager’s statement that he had not consulted with the senior operator in deciding to terminate Li’s employment. A claimant in a Human Rights complaint has to prove on a balance of probabilities that some hurtful action taken was provoked, at least in part, by a prohibited ground under the Human Rights Code. Saying that you felt like the motivation was discriminatory doesn’t mean that it was, or that you can prove it.
Li had asked that there be a publication ban on his name in these proceedings as he said he had safety concerns but did not provide any persuasive details. That Application was denied. It is presumed that all of the proceedings under Human Rights legislation are open unless somebody can prove a very significant privacy or safety concern. Whether it is fair or unfair, with a little digging, anyone checking Li’s background as part of any job application would come up with this ten page Decision. That should not discourage people from bringing bona fide Human Rights complaints unless they are sure they can win. They do need to know that it can be a cruel world and losing can leave you worse off.
