A recent B.C. Human Rights Tribunal case involved a twist, in which Caucasian employees claimed their Asian boss had discriminated against them at work. This was a reversal of the more common situation where discrimination is alleged against a member of a historically disadvantaged group.
The problems arose after a change in ownership at the Spruce Hill Resort and Spa, in the Caribou region of B.C.
Mr. Chan, the new owner of the resort, was overseeing major renovations at the resort.
During the renovations, the resort operated at reduced capacity.
A group of employees who remained working complained to the B.C. Human Rights Tribunal that Mr. Chan had discriminated against them because they were white.
The tribunal found that Mr. Chan had repeatedly stated that he wanted to replace Caucasian employees with Chinese ones to reduce labour costs.
He said that “Chinese workers do not have to be paid holiday pay or overtime” and that he could hire two Chinese workers for every white worker.
And then, he proceeded to do just that.
He hired a number of employees of Chinese ethnicity. Several lacked experience and were unqualified to perform the tasks assigned to them. Consistent with Mr. Chan’s earlier comments, several of the new employees performed the work of two Caucasian employees, and expected no overtime pay.
Eight Caucasian employees were then either dismissed or resigned.
Discrimination in Employment Based on Race and Colour
They filed a complaint with the B.C. Human Rights Tribunal, alleging that Mr. Chan and Spruce Hill Resort had discriminated against them on the basis of race and colour.
To prove their case, they had to establish: (1) they are protected under the race or colour provisions of the Human Rights Code; (2) they experienced an adverse impact in their employment at the resort; and (3) their race, colour, ancestry, or place of origin was a factor in that adverse impact.
Once they established those three facts, the burden shifted to Mr. Chan and the resort to justify their conduct in the manner required by the legislation.
The Tribunal acknowledged that justification is rarely established in cases involving race discrimination.
It found that the complainants were each Caucasian, and were referred to as “white” and “Caucasian” by Mr. Chan.
It found that the end of their employment was an adverse impact that satisfies the second factor above.
The Tribunal noted that racial stereotyping is usually the result of subtle unconscious beliefs, biases, and prejudices, and that these are rarely displayed openly.
The complainants were not required to prove that any stereotyping was intentional.
Nor were they required to prove that race was the main factor triggering the end of their employment.
Rather they needed only to show that race was a factor in the adverse impact they experienced. This could be drawn by inference from all of the circumstances.
Mr. Chan argued that his conduct had nothing to do with race and everything to do with money. He alleged financial constraints. However, he failed to produce financial evidence to substantiate his claims.
This case demonstrates that victims of racial discrimination need not necessarily be members of a minority group.
The B.C. Human Rights Tribunal also found that Mr. Chan had sexually harassed one of the employees while they were on a business trip to China. This consisted in part of him booking a single room for them to stay in, and taking her to the market where intimate toys were sold.
The complainant was in a foreign country where she did not speak the language. Mr. Chan, her boss was there, knew his way around, and spoke the language.
The B.C. Human Rights Tribunal found that the complainant was vulnerable in these circumstances and “had nowhere to go.”
It found that given these circumstances, the power imbalance was such that Mr. Chan’s conduct toward her amounted to sexual harassment.
In the end, the complainants were awarded a total of over $173,000 as compensation for lost wages and injury to dignity, feelings, and self-respect. This included a $62,000 award to a single complainant. This is toward the high end of awards made to date by the B.C. Human Rights Tribunal.
For More Information
If you feel that you might be experiencing discrimination because of your race, color, gender, or another characteristic protected by human rights legislation, the Human Rights Tribunal website at http://www.bchrt.bc.ca/ is a good place to start to learn more about your rights. You can also consult a lawyer with knowledge in this area.
This is a modified version of an article that is to appear in the Kelowna Daily Courier on February 8, 2019, the Kelowna Capital News online on or about February 10, 2019 and other online publications. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or firstname.lastname@example.org.