Joking Constitutes Discrimination

Chiswell v. Valdi Foods 1987 Inc. (1994), 25 C.H.R.R. D/400 (Ont. Bd.Inq.)

The Board of Inquiry finds that John Curry and Valdi Foods discriminated against Paula Chiswell by creating and permitting a racially poisoned environment to exist in the workplace while she was employed as a cashier in the Valdi Foods store in Amherstburg, Ontario.

Paula Chiswell, who is black, was hired in January 1991 to work as a part-time cashier in the Valdi Foods store, replacing another employee who was on maternity leave. Ms. Chiswell was fired in March 1991 for insubordination.

In the period while she was employed the Board of Inquiry finds that John Curry, the manager of the store, mimicked the accents of some of the store's customers, "jokingly" called Ms. Chiswell "a little old black lady on a broom," told Ms. Chiswell and another cashier who was also black that a customer "did not know which black cashier to go to," and asked which "nigger" had moved things on the shelves. Mr. Curry also engaged in and allowed other employees to engage in race-based jokes, comments, and actions. The Board of Inquiry concludes that Mr. Curry's behaviour was unconsciously discriminatory and created a poisoned environment.

In March 1991, Ms. Chiswell, who was still on probation, asked to switch a shift, and when asked why she said she "had to attend to business." Ms. Chiswell's employment was terminated the following day for insubordination.

The Board of Inquiry finds that, though unconscious discriminatory behaviour will constitute a violation of the Ontario Human Rights Code and a nondiscriminatory environment can be considered a term of employment for everyone in Ontario, racial harassment does not give the employee the right to be insubordinate to management.

The Board of Inquiry finds that Ms. Chiswell's termination did not occur because of race discrimination or because of her reaction to the harassment.

The Board of Inquiry dismisses the complaint alleging discrimination in the termination of employment, and upholds Ms. Chiswell's complaint that she was racially harassed while employed by Valdi Foods.

Because Mr. Curry was already demoted by Valdi Foods and moved to another store, the Board of Inquiry declines to award any further remedy against Mr. Curry.

However, the Board of Inquiry orders Valdi Foods to pay Ms. Chiswell $3,000 in damages for her pain and humiliation, and to undertake a training program for its managers in all its stores on what constitutes race discrimination and racial harassment. Valdi Foods is ordered to report to the Ontario Human Rights Commission what steps it has taken to comply with this order, and the Board of Inquiry retains jurisdiction so that it can make any further order that may be necessary to ensure that effective training takes place.

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