“Smile more” – a costly comment for an employer to make

Vancouver medical equipment company ordered to pay $20,000 to former employee for discriminatory comments, retaliation

A sales associate who worked for Aurora Biomed Inc., a company founded and run by Dr. Dong Liang, has been successful in her complaint of discrimination and retaliation against her former employer of 13 months in a decision released this month by the British Columbia Human Rights Tribunal under The Sales Associate v. Aurora Biomed Inc. and others.

Aurora was ordered to pay the sales associate $20,000 and make an appropriate anti-discrimination and harassment policy.

The Claimant’s case

The sales associate’s complaint to the Tribunal set out that Dr. Liang asked inappropriate questions during her job interview about her marital status and plans to have children. While she was employed, she said Dr. Liang made further comments about her appearance, calling her a “beautiful lady” or “beautiful girl”, instead of using her name, and that “she should smile more”.

The sales associate brought her issues to the attention of her Supervisor, who was Dr. Liang’s daughter. In a meeting with Dr. Liang and her Supervisor, the sales associate’s complaints were discussed, and she was asked to sign a document stating she had not been sexually harassed. The next day while driving to work, the sales associate received a call from her Supervisor who told her she was fired.

Conclusion

The Tribunal made an assessment of each of the parties’ credibility, and not all of the evidence presented by either party was accepted. For one, Dr. Liang was away for nearly 55% of the period the sales associate was employed, and some of the employee’s evidence was not consistent.

Still, the Tribunal made a determination that the comments regarding her appearance were made at least occasionally and had the effect of making the sales associate feel uncomfortable and disrespected. When the sales associate brought the issues to her employer, she was terminated.

The Tribunal found the comments to be not only inappropriate, but discriminatory. They determined that the sales associate’s sex was a factor that led to her losing her job and her firing was retaliation for the prospect she might make a human rights complaint.

Takeaway for Employees

If you have been subject to comments about your appearance or marital status during your employment, and you believe there isn’t anything you can do about it, know that the Tribunal takes these issues seriously.

Comments which add to the subtle forces which strengthen, continue, and make worse the disadvantages faced by many women in their workplaces and deny women equal access in the workplace will be seriously scrutinized by a tribunal, especially because of the power imbalance between an employer and an employee.

If you are experiencing work-related discrimination and harassment, contact the employment lawyers at Samfiru Tumarkin LLP immediately to find out what your options are.

Takeaway for Employers

Ensure your workplace has a proper understanding of discrimination and a proper complaint mechanism to deal with issues raised with harassment in the workplace. Aurora did not have a working policy or training on these issues. Sexual harassment extends beyond sexual assault and ignorance of the Code is no defence to a complaint of discrimination.

Even misguided, non-sexual attempts to be friendly and warm can be violations of the British Columbia Human Rights Code if it is found that the comments adversely impact employees’ jobs because of their sex.