Canadian HR Reporter

www.hrreporter.com 33 C O L U M N S E M P L O Y M E N T L AW BIG DAMAGE AWARD FOR RACIAL DISCRIMINATION British Columbia Human Rights Tribunal has awarded almost $1 million — including the largest award for injury to dignity in B.C. history — to a former corrections officer who was a victim of racial discrimination at work. Levan Francis, 51, was a correctional officer at the North Fraser Pretrial Centre in Port Coquitlam, B.C. Francis, who identifies as Black, filed a human rights complaint in October 2012 and claimed that he was targeted for more discrimination when news of his complaint surfaced. Francis listed several incidents starting in January 2012: • He was stereotyped as "slow" opening the doors of the control centre, although the evidence was that he performed to the required standard. • A supervisor told him he needed to "step up his game" due to complaints but wouldn't provide details. • A colleague made a sarcastic reply of "Because you're Black" to Francis questioning why he had to help move an inmate. • A supervisor commented about turning on the lights to see a Black person. • A colleague used a racial slur when talking about a former correctional officer who was Black. • The assistant warden referred to Francis as a "lazy Black man." • Francis complained to management, but the investigations didn't lead to any concrete action. • After filing his human rights complaint, Francis was called a "rat" and heard that he had "a target on his back." • One colleague said to another: "Sorry you have to work with that n-----." On July 28, 2013, an inmate in segregation died while Francis was on duty. Francis was shaken and filed a workers' compensation claim for injuries stemming from "a series of incidents involving bullying and harassment" as well as the inmate's death, which he called the "last straw." Francis never returned to work and was diagnosed with a serious mental illness that disabled him from working in any occupation. In addition, after leaving his employment, his physical health declined — he suffered from various anxiety-related symptoms and his life- style became less active as he dealt with the mental repercussions of his experience. The tribunal found that Francis was subjected to discrimination in his employment based on his race and colour. It also found that two supervisors retaliated against Francis by misreporting his behaviour and unfairly repri- manding him, which led to him being perceived as a troublemaker. The tribunal also noted that, although the death of the inmate triggered Francis' depar- ture, it didn't substantially contribute to it. "There was no other reasonable option for Francis but to leave the workplace by July 2013 because it was poisoned by the [Human Rights Code] contraventions, and Francis was not required to continue subjecting himself to discriminatory practices," said the tribunal. The purpose of compensation was to restore Francis to the position he would have been in had the discrimination and retaliation not happened, said the tribunal. It also found that since some of Francis' mental health issues were related to intervening events involving disputes over his benefit entitlements, the total award should be reduced by 20 per cent to reflect "a reasonable estimate that 80 per cent of the losses that Francis experienced flow from the contraventions for which the [employer] should be held responsible." The tribunal determined that Francis was entitled to compensation for loss of past wages as well as future earnings given his permanent impairment. The evidence was that Francis enjoyed his job before the discrimination — he had been a corrections officer for nearly 15 years — and he would likely have retired around the age of 63. In addition, the discrimination and retalia- tion "amounted to an exceptionally damaging affront to Francis' dignity" and encompassed "virtually the entire spectrum of racial discrim- ination and harassment in the workplace," said the tribunal. The province was ordered to pay Francis a total of $964,197 in damages — including $695,661 for loss of past and future earnings from the day he left work to the projected date of his retirement and $176,000 for injury to dignity, feelings and self-respect — the latter being the largest award for injury to dignity in the history of the province. The tribunal denied Francis' claim for $250,000 in legal costs. See Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16. CHRR The B.C. Human Rights Tribunal recently awarded more than $960,000 in damages to a former corrections officer for racial discrimination that he suffered at work. Jeffrey R. Smith looks at why the tribunal felt the worker deserved such a large amount WORKPLACE DISCRIMINATION EXPERIENCED AT CURRENT EMPLOYER Jeffrey Smith Editor of Canadian Employment Law Today Source: Boston Consulting Group's Centre for Canada's Future The discrimination ''amounted to an exceptionally damaging affront to Francis' dignity,'' said the tribunal, in finding he was entitled to a higher damage award. THE 33% of LGBTQ2 33% of women 40% of First Nations 34% of people of colour

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