Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people���s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: Employment Discrimination against Caucasians in B.C.

An interesting twist arose in a recent BC Human Rights Tribunal case. In a reversal of the more common situation where discrimination is alleged against a historically disadvantaged group, Caucasian employees claimed that their Asian manager had discriminated against them at work.

The problems arose after a change in ownership at the Spruce Hill Resort and Spa, in the Caribou region of B.C.

Mr. Chan, the new owner of the resort, was overseeing major renovations at the resort.

During the renovations, the resort operated at reduced capacity.

In anticipation of this slowdown, few of the resort’s employees remained working.

A group of the remaining employees complained to the BC Human Rights Tribunal that their Asian boss, Mr. Chan, had discriminated against them because they were white.

The human rights tribunal found that Mr. Chan had repeatedly stated that he wanted to replace Caucasian employees with Chinese ones to reduce labour costs.

He said that “Chinese workers do not have to be paid holiday pay or overtime” and that he could hire two Chinese workers for every white worker.

And then, he proceeded to do just that.

He hired a number of employees of Chinese ethnicity. Several lacked experience and were unqualified to perform the tasks assigned to them. Consistent with Mr. Chan’s earlier comments, several of the new employees performed the work of two Caucasian employees, and expected no overtime pay.

Then, eight Caucasian employees were either dismissed or resigned.

They filed a complaint with the BC Human Rights Tribunal, alleging that Mr. Chan and Spruce Hill Resort had discriminated against them on the basis of race and colour.

To prove their case, they had to establish: (1) they are protected under the race or colour provisions of the Human Rights Code; (2) they experienced an adverse impact in their employment at the resort; and (3) their race, colour, ancestry, or place of origin was a factor in that adverse impact.

Once they established those three facts, the burden shifted to Mr. Chan and the resort to justify their conduct in the manner required by the legislation.

The Tribunal acknowledged that justification is rarely established in cases involving race discrimination.

It found that the complainants were each Caucasian, and were referred to as “white” and “Caucasian” by Mr. Chan.

It found that the end of their employment was an adverse impact that satisfies the second factor above.

The Tribunal noted that racial stereotyping is usually the result of subtle unconscious beliefs, biases, and prejudices, and that these are rarely displayed openly.

The complainants were not required to prove that any stereotyping was intentional.

Nor were they required to prove that race was the main factor triggering the end of their employment.

Rather they needed only to show that race was a factor in the adverse impact they experienced. This could be drawn by inference from all of the circumstances.

Mr. Chan argued that his conduct had nothing to do with race and everything to do with money. He alleged financial constraints. However, he failed to produce financial evidence to substantiate his claims.

In the end, the complainants were awarded a total of over $173,000 as compensation for lost wages and injury to dignity, feelings, and self-respect. This included a $62,000 award to a single complainant, which is toward the high end of awards made to date by the BC Human Rights Tribunal.

This case demonstrates that victims of racial discrimination need not be members of a minority group.

If you feel that you might be experiencing discrimination because of your race, color, gender, or another characteristic protected by human rights legislation, the Human Rights Tribunal website at www.bchrt.bc.ca/ is a good place to start to learn more about your rights.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca. Check out our website, www.inspirelaw.ca.

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