Black History Month

The Mayor of Toronto’s Proclamation for Black History Month 2012, states:

Black History Month reminds us that African Canadians have been at the forefront of the struggle for fair treatment and equal opportunity for all. It challenges us to reaffirm our efforts to address the causes and effects of racism and recommit ourselves to building an inclusive society.

Back in 1993 the Ontario Court of Appeal held that there is support for the view that “widespread anti-black racism is a grim reality in Canada and in particular in Metropolitan Toronto.” We still see plenty of examples of racism in the workplace today – though much of it, is subtle.

One of the most interesting decisions that I have read regarding anti black racism is Selwyn McSween v. Law Society.  This decision was released just one month ago. It is the dissenting opinion of renowned criminal lawyer, Clayton Ruby that is relevant to the struggle for fair treatment.  McSween went to law school at the age of 52. He was 58 when he was called to the Bar.  After articling with an established firm, he was unable to find a position as an associate with a firm.  He did find work as the CEO of the Caribana festival.  He determined that he wanted to do real estate law, though he had apparently not been exposed to this during his articles.  Eventually he began his own practice – in somewhat of an unorthodox fashion.  Through Caribana, he had met a para legal with experience as a real estate clerk. Discussing his law career aspirations with her led to a meeting in the clerk’s car where she offered to teach him everything she knew about real estate, give him an office, refer files to him, and not charge him for her processing of the files.  Sounds like a good arrangement which McSween accepted.  The arrangement lasted about 6 months during which 40 real estate transactions were processed. Unfortunately for Mr. McSween on at least 10 of these transactions fraud occurred.  It appears the clerk was behind the fraud. McSween was disbarred.

McSween was born in abject poverty in Trinidad and Tobago and came to Canada at the age of 22. He earned a B.A. at the University of Manitoba and then a M.A. (for which he received the gold medal). In 1976 he began a Ph.D at the University of Toronto.  Prior to law school he had an impressive career working as an investigator with the Ontario Human Rights Commission and then as a Pay Equity Officer with the Pay Equity Commission of Ontario.  Next he became Director of Policy in History and Culture for the Government of Ontario.  At one point he became a Special Advisor to the Human Rights Commission and a Director in the Citizenship Department.  Since leaving the practice of law he has been employed at York University in roles such as ombudsperson and director of human rights.

So what does this have to do with anti black Racism? McSween acknowledged responsibility for the mortgage fraud occurring on his watch but suggested that rather than being disbarred he should be allowed to resign.  The basis for his argument:  he was denied opportunities to properly learn the intricacies of real estate practice because of his race.  McSween states that he was denied appropriate articles of clerkship opportunities and then associate positions which left him accepting the relationship with the unscrupulous law clerk.  Prominent criminal lawyer Clayton Ruby (acting as panel member on the Law Society’s appeal tribunal) in a dissenting opinion wrote:

The existence of anti-black racism in Canadian society is not the subject of debate among reasonable people.  Indeed, judicial notice of systemic racism in Ontario has been accepted since R. v. Parks, supra in which the Ontario Court of Appeal took judicial notice of systemic anti-black racism in Canadian society.  The Court also acknowledged, at paras. 366-369, the devastating results of such acute disadvantage for black persons: unemployment, poverty, and denial of opportunity, the exact circumstances that are alleged by Mr. McSween in the current appeal.

 It is reasonable to infer that as a group, Afro-Caribbean Canadian lawyers are economically and professionally disadvantaged when compared with their colleagues, and that many face diminished opportunity as alleged in this case by Mr. McSween.

The hearing panel erred by failing to give sufficient weight to the systemic disadvantage experienced by Mr. McSween as a lawyer of Afro-Caribbean descent.  His employment and articling history of repeated rejection despite his impressive academic achievement signal this and can hardly be explained except on the basis of racial and age discrimination. 

Accordingly,  Ruby concludes that it would be appropriate to allow McSween to resign rather than to be disbarred.

Valentine's Day

To-morrow is Saint Valentine's day,
All in the morning betime,
And I a maid at your window,
To be your Valentine.
Then up he rose, and donn'd his clothes,
And dupp'd the chamber-door;
Let in the maid, that out a maid
Never departed more.

                                                                Shakespeare – Hamlet (Ophelia)

It will come as no surprise to many of you that Valentine’s Day can be a confusing time.  This may be a time when the “would be womanizers” are most confused about where the line is between normal human interaction and sexual harassment.  Expectation and anticipation abound. According to one source nearly $15 billion will be spent on this day in the United States alone.

The basis for a celebration of love on this date goes back to ancient Rome, when  February 13 – 15^th were celebrated as Lupercalia, a pagan fertility festival.  Young men would strip naked and use goat- or dog-skin whips to spank the backsides of young women in order to improve their fertility. A tradition of sending anonymous notes to the objects of one’s affections began around 1797 in England. 

Hallmark is celebrating the 100^th anniversary of its Valentine’s card and anticipates selling 160 million cards.

The tradition found its way into one sexual harassment case where two men purchased g-strings and sent them through inter office mail to 3 female employees.  The men then denied their participation.  Both were fired.

The one who played the lesser role brought an action for wrongful dismissal.  The court looked at the company policy, the company culture and the degree of dishonesty. All of these factors suggested that dismissal was too severe a penalty. 

Is the Super Bowl bad for the workplace?

I have heard varying figures on absence due to Super Bowl; one site states 7 million people will call in sick, another indicates that 1.5 million people will be absent from work and another 4.4 million will call in late;  the cost in lost production will be $820 million. That, of course, pales in comparison to the more than $11 billion that the Super Bowl injects into the economy.  The game itself is worth a billion dollars and is larger than the GDP of 25 countries. It’s a big deal. But is it big enough to warrant or excuse bad workplace behavior? 

Super Bowl XXXVII was played on January 26^th, 2003 in San Diego between the Oakland Raiders and the Tampa Bay Buccaneers.  The Dixie Chicks sang the Anthem and Shania Twain played the half time show. Fred and Andrea Tesselar weren’t among the 88.6 million people who watched the event, but Fred’s boss Howard Bowling was.  That afternoon, in whiteout conditions outside of Sarnia, Ontario, Fred and Andrea were in a motor vehicle accident in the company vehicle. Andrea was driving.  They were on company business – Howard had called Fred at 7:00 a.m. that day telling him that a part was needed in Wheatley about two hours away. Fred had just come back from Wheatley and wasn’t happy about making the return trip again - -but Howard pleaded with Fred, because everyone else at the company was going to be at a Super Bowl party at Howard’s brother’s place.  After the accident Fred called to advise Howard, but the partying boss was in no mood to take the call.   

On Monday Howard advised Fred that he had to ask head office what to do about the accident, given that Andrea was driving the company vehicle.  Throughout the week Fred continued to ask what was happening, but Howard remained evasive.  Fred even offered to pay for the damage to the vehicle himself.  Eventually Fred was fired for his efforts. 

At some point after the termination, Fred died and Andrea brought a case to the Labour Board to obtain termination pay which hadn’t been provided to him.  The Board awarded the statutorily required 8 weeks and sought more information to determine the amount of severance pay entitlement that there would be (It would have been slightly more than the $8400 in notice).  The Board does not have jurisdiction to award damages for bad faith, or punitive damages, which might have been sought in a wrongful dismissal case.  

The law does provide that a claim for wrongful dismissal can be maintained by the estate of a deceased worker.  Had Fred’s estate brought a claim, the case may well have been worth $60,000 -- $100,000. That number is based on the provision of reasonable notice in the range of 10 months plus bad faith damages (which were more readily available in 2003 than today) and perhaps punitive damages.

No Boys Allowed

 First, in the Sexes' intermix'd connection,
One sacred Right of Woman is, protection. – Robbie Burns

As we discussed last week, the exclusion of women from traditionally male institutions and programs has been repeatedly challenged and isn’t holding up.  Is the same true for women’s only institutions and programs? Anecdotally, it would be easy to answer in the negative.  In the news last week, the Georgian Court hotel in Vancouver announced it was looking at expanding its Women Only floor to add a second. In an interview on the CBC, hotel employee Lisa Jackson, stated “It’s not meant to be exclusionary whatsoever”. That, of course, is absurd. It is absolutely meant to exclude men.  A hotel in Denmark which apparently was one of the first to offer the exclusive floors was found to be in violation of that country’s discrimination laws. There are many other hotels that provide the same service now. Women’s fitness clubs also have also proliferated and seem to have survived various challenges. Even where the challenges have been made by transsexuals and transgendered person.  In Macdonald v. Downtown Health Club.  The women’s only standard is a high one. For example, in Nixon v.  The Vancouver Rape Crisis Centre, the Centre was justified in excluding  Nixon form a counseling position because she hadn’t always been a woman.   A few weeks back I mentioned the Hooters case settling with Hooters explaining that being female was a bona fide occupational requirement for its job of serving beer and chicken wings.  In a recent court filing, a man claims he was fired from late night show host Jimmy Fallon’s production team because Fallon prefers to hire women.  Ladies’ nights at Night Clubs have also been mostly unsuccessfully challenged. Is the law really lopsided? Are men getting a bad deal?

In one recent Ontario case, Carter v. EFTO,  a male union member of a union comprised almost entirely of women complained that  “the policies and practices of the Elementary Teachers Federation of Ontario (the “ETFO”) exclude men from approximately 50% of all education programs and also exclude men from 5 out of the 14 elected Executive positions. The Human Rights Tribunal dismissed the case on the basis that women have been historically underrepresented within the EFTO at annual conferences, as local presidents and  as chief negotiators. Relying upon the fact that women face systemic discrimination in society and in the EFTO in particular the panel noted that the EFTO’s programs were designed to relieve against that discrimination. Indeed, s. 14 of the Ontario Human Rights Code provides:

A right under Part I [ the right to be free from discrimination] is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

Interestingly, the Tribunal held, based on a Court of Appeal decision, that this section precludes members of historically privileged groups, i.e. , men,  from even challenging the law. In other words, an attack on affirmative action programs, or “reverse discrimination” can not be made by anyone other than a member of an historically disadvantaged group.  Accordingly, Mr. Carter’s challenge to his union’s programs was dismissed on the basis that he did not have the legal right to make a complaint.

Affirmative action programs have often come under attack in the United States as being a denial of equal opportunity ; in Canada, the Charter of Rights and Freedoms makes such programs legal by setting out that the equality provision in s. 15

does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Where it is taken that there is a disadvantaged group, then a reverse discrimination not only in substance, but even in procedure as set out in the OHRC is not subject to challenge.There is no doubt that affirmative action is useful to help speed the correction of an historical denial of opportunity. It is unlikely that Jimmy Fallon, or even the Guardian hotel have as their goal the amelioration of historical disadvantages.  

The other reason for women’s only clubs and programs is safety.  As the lines from the Robbie Burns poem above suggest,  where the sexes are mixed, safety must be considered. The Georgian Court Hotel cites security as one of the reasons it provides women’s only floors. In the Brampton Youth Hockey case discussed last week, safety is mentioned often in the case as one of the major concerns with the policy. The same is true in the Blue Heron Casino case also discussed last week.  In those cases the organizations, though having to provide equal opportunity for women still ran afoul of the law because protection of safety wasn’t enough.  For the Hotel, the question will arise about men not being able to work on the women’s floor.  How differently will such challenges be treated, than that in the decision of the Blue Heron Casino where a woman was being discriminated against because she wasn’t given the position that involved cleaning the men’s washroom? 

At a Robbie Burns dinner this year I heard a woman make an impassioned argument that Robbie Burns wasn’t a womanizer, but rather a man who loved women.  And as Burns pointed out more than 200 years ago:

There was, indeed, in far less polish'd days,
A time, when rough rude man had naughty ways,
Would swagger, swear, get drunk, kick up a riot,
Nay even thus invade a Lady's quiet.

Now, thank our stars! those Gothic times are fled;
Now, well-bred men-and you are all well-bred-
Most justly think (and we are much the gainers)
Such conduct neither spirit, wit, nor manners.

Or,  as the old Virginia Slims cigarette ad states:  You’ve come a long way baby.

Boys NIght Out Part II

No Girls Allowed. Last week I wrote about a boys night out with my colleagues at the Centre for Human Resources. This boys’ night out was arranged by one professor who invited male colleagues out for beer, wings and bonding. Several of our female colleagues teasingly suggested that they would crash the get together. At our institution it is unlikely that any of the female faculty would think that this night out was a gathering of the power elite from which they were excluded. Our department has a male chair now for the first time in 10 or 15 years that I can recall. Nevertheless, the issue of women being excluded from the social aspect of the corporate world and therefore denied access to some of the very real opportunities for advancement is still present.

One of the big legal stories in Toronto in the last few years in this area is that of Diane LaCalamita, an intellectual property lawyer, who is suing her former firm, McCarthy’s for $12 million for discrimination. The statement of Claim filed by LaCalamita does not refer to the boys club, speaking more specifically about a culture of discrimination and denials of partnership opportunities. LaCalamita’s picture was on the cover of several magazines and her notoriety has become such that she has apparently decided to write the British Bar exams because she says she will never work in this town again. Is the “deadly war between the sexes” (as Nietzsche called it) still waging?

McCarthy’s own report on equality “found that while many lawyers believed the firm environment was characterized by great people and great work, a majority of women felt marginalized by subtle stereotypes, that they perceived “male” and “female” types of work, and that they felt excluded by “boys’ clubs.”

In the lawyer centered, Precedent magazine, there was a discussion of women leaving the profession. Although the law schools now graduate more women than men, women leave the profession at twice the rate of men. One of the reasons cited is that it is still viewed as an old boys’ world. Men at the top control the best work and make access to women very difficult.

Keeping women out of the boys’ club was front and centre back in 2002 when the men’s only rules of the Augusta National Golf club was challenged by Martha Burk, chair of the National Council of Women’s Associations. According to Burk, "The most powerful men in the United States are (at the club), doing business, finalizing contracts. Women are completely excluded from these transactions."

Augusta hasn’t changed and even last year, its “boys’ club” rule was in the media after a reporter was barred from the locker room. “Tara Sullivan, a reporter for The Bergen Record in New Jersey, was unable to join her fellow writers in the locker room for interviews after the final round of the 2011 Masters had concluded, all because of her gender.” Similarly, in September 2010, the New York Jets, although allowing reporter Inez Sainz into the dressing room to interview quarterback Mark Sanchez, had to apologize for the many sexist comments made by Jets’ personnel to Sainz. The Human Rights argument is that Sainz is unable to do her job as a reporter because she is being discriminated against and being sexually harassed in the workplace.

There are, of course, public policy reasons for keeping men and women separated in washrooms and locker rooms. The Ontario Human Rights Code provides in section 20

(1) The right under section 1 to equal treatment with respect to services and facilities without discrimination because of sex is not infringed where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency

Though not specifically argued, the public decency defence is at the heart of a recent Human Rights Tribunal decision involving girls playing hockey. In Demars v Brampton Junior Hockey, Shaunna and Robyn Demars were barred, by rule from changing with the boys on the team once they hit the age of 12. The Association has a rule that requires that girls be given at least 10 minutes pre and post game time to be with the team. The rule takes into account that at an age where the players will be more aware of sexuality, precautions must be taken. There must be adult supervision; boys are required to wear boxer shorts and t-shirts and there must be separate time for changing and then team time. The girls often did not get this team time and when they were there were often subjected to derogatory comments. The girls often weren’t told where they could change and would have to lug their hockey bags around looking for the arena manager. And then they often had to change in substandard rooms, offices, janitors rooms etc. The tribunal found that discrimination occurred and awarded a total of $20,000 in damages.

The public decency argument was made in the employment context in Sequin v. Blue Heron. The casino which operated 24 hours a day had a policy that only male housekeeping staff could clean the mens’ washrooms and only female staff could clean the female washrooms. Two part time washroom attendants were hired, one male, one female. When a full time position became available, it was given to the male without competition because one of the duties of the full time attendant was to clean the men’s washroom. In fact, the Casino had housekeeping teams made up of two men and two women. It was a male that left one of the teams and the Casino sought to replace that position. The Casino did make the public policy argument as well as the BFOR argument. The Tribunal held that the BFOR argument failed on the Meiorin test because it would have been possible to accommodate Ms. Sequin. The Casino could have shifted men around from the other team to assist with the washroom cleaning duties, it could have hired another part time male attendant. Because step 3 of the Meiorin test (see last week’s column) failed, the standard was struck down and Ms. Sequin was awarded damages – which eventually after appeal and a new hearing on damages amounted to $6426 plus interest.

Whether it’s public decency, bona fide occupational requirements or just a group of guys getting together for beer and wings, the exclusion of women will almost always raise questions and create tension. There is a long history of women dressing as men to get to do the things men are doing. Looking at this in an interesting context, Willow Dawson and Susan Hughes have launched a graphic novel in which they spin historical yarns about women that dressed as men for fortune, fame and love. The title: No Girls Allowed!