One of the challenging circumstances often facing an employer is having to make a tough decision (e.g. termination) with respect to an employee who is known to have a protected characteristic under human rights law. Whether the employee is elderly, has a disability, is gay, or has another protected characteristic, the concern is that the employee will allege that the decision was discriminatory. Even if the employer is comfortable that the protected ground was not a factor in the adverse decision, the threat or commencement of a complaint will add costs, time and stress.
Thankfully, the BC Human Rights Tribunal (HRT) has held that speculation is not sufficient to make out a case of discrimination. It is generally not sufficient to allege, “I am [old, pregnant, lesbian, disabled, etc.] and was [terminated, disciplined, denied a promotion, etc.] therefore I was discriminated against. The employee must demonstrate a causal connection, i.e. that the characteristic was a factor in the decision (it does not need to be the main or only factor). If no causal connection is shown, the employer may apply to have a complaint dismissed without a hearing saving time and money.
A recent decision has reaffirmed this principle. In this case, an employee was found to have been using gay dating apps to connect with other gay men. His online profile clearly showed that he worked for the employer, a university, and he used the app to connect with other employees and students of the university. He acknowledged that he had liaisons with university students. This was a concern for his employer as the employee was an academic advisor. His employment was terminated based on his conduct.
The employee alleged that the termination was discriminatory on the basis of sexual orientation. The employer applied to have the complaint dismissed on a preliminary basis asserting that the former employee had failed to show a causal connection between his conduct and his protected characteristic.
The HRT dismissed the case concluding that there was no reasonable prospect that the former employee would succeed with his claim. Although he was gay, and had been terminated for carrying on activities associated with his sexual orientation, he had not demonstrated that his sexual orientation was a factor in the decision, i.e. that he was treated differently because of his orientation.
The former employee appealed this decision to the BC Supreme Court but the court dismissed the appeal.
While employers can take comfort in the re-affirmation of the Tribunal’s approach, the case also reminds employers to be very careful in the investigation, management and communication of workplace decisions particularly where there a protected ground that might be perceived as relevant. The analysis and communication need to stay strictly focused on the appropriate employment considerations.
Additionally, it is a cautionary reminder for human resource professionals that employers must be vigilant to prevent inappropriate workplace communications that are based on protected grounds. Offside workplace comments can later be used to claim that a causal connection existed between a decision such as a termination and a protected ground.
