Worker's inappropriate communication with employer counsel fatal to human rights complaint

The BC Human Rights Tribunal has dismissed a worker’s complaint of workplace racism due to the worker’s abusive communications with the employer’s counsel.

The worker was from Iran and worked in a temporary cook position for the Fairmont Hotel Vancouver starting in October 2019. According to the worker, another hotel employee made racist comments at work, including that another Iranian employee’s skin was darker because it was dirt.

The worker asked to work in a different kitchen from the co-worker, but the hotel denied his request. He didn’t feel safe or comfortable working with the co-worker in a small room, so resigned from his employment on Dec. 14, 2019.

Ten days later, he filed a human rights complaint against the hotel alleging discrimination in employment on the basis of race, colour, ancestry, and place of origin.

On April 14, 2020, the worker wrote to the hotel’s legal counsel to disagree with something in the hotel’s response to his complaint. He concluded the email with “Please clarify that with your scumbag associates.” He sent a second email that said, “Go to hell for defending racism, you dirtbag.”

The next day, the worker emailed the hotel’s counsel with a copy of a message he sent to someone at Fairmont with a comment that included a profanity.

Racist and sexist behaviour continues to exist in many workplaces, especially for marginalized employees, according to a report.

Rules of conduct

On April 16, Fairmont’s counsel advised the tribunal of the worker’s emails, referring to the tribunal’s Rules of Practice and Procedure that require participants and representatives to treat everyone involved with courtesy and respect and not act in a manner that would undermine the process.

Fairmont’s counsel requested that the tribunal dismiss his complaint or at least restrict his direct involvement in the case. The worker, who was copied on the email, responded to her by saying, “Defenders of racism deserve to be told the truth… defending racism is low of the low.”

The tribunal wrote to the worker on April 17 stating that he had communicated “with hostility” towards Fairmont’s counsel and if it continued, his personal involvement in the complaint would be limited.

On April 20, the worker emailed Fairmont’s counsel, saying not to contact him with “false provoking statements” and he suffered from anxiety, depression, and post-traumatic stress disorder (PTSD). During this time, the worker sent various correspondence to the tribunal, in which he was polite and respectful.

A BC worker’s complaint of racial and disability discrimination was dismissed for having no proof.

Insulting emails

From May to August, the worker sent emails to Fairmont’s counsel about protests he was organizing in front of the hotel and the counsel’s law firm. He said the media was involved and “you are going to be famous for defending racism.” He also said another law firm offered to take on his lawsuit against the counsel’s firm because “they’re equally offended that there is scum defending racists.”

In October, the worker sent two emails to Fairmont’s counsel saying he would be filing a human rights case against the counsel and her “bottom feeding law firm.”

The worker sent other emails over the course of 2022, alleging unprofessionalism and dishonesty against the counsel.

On Jan. 22, 2023, the worker referred to Fairmont’s counsel as a “token East Indian lawyer” at her law firm. He also threatened to “sue the living hell out of you personally, you sell-out defender of racism” for defamation of character and false accusations.

Other angry emails followed with similar comments from the worker, including calling the hotel’s counsel a “disgraceful defender of bigotry” and the hotel’s HR manager a “bigot racist skank.” He again threatened to file a human rights complaint against her and her “pathetic law firm.”

Unfair treatment at work is not discrimination without evidence of a nexus to a human rights-protected ground, the Ontario Human Rights Tribunal ruled.

Application to dismiss complaint

On Jan. 30, Fairmont filed a second application to dismiss the worker’s complaint on the basis that it would not further the purposes of the BC Human Rights Code to continue. The same day, the worker emailed Fairmont’s counsel and the tribunal saying that Fairmont was provoking his mental health issues and he was “expressing my disgust and anger towards racism and racists in a non-threatening manner, never crossing the line.”

The worker sent other emails to Fairmont’s counsel saying that she was “a disgrace to the fight against racism” and she was a “dishonest and unprofessional lawyer.”

On Feb. 7, the tribunal granted an interim order limiting the worker’s communications with Fairmont’s counsel. The worker responded with an email explaining that his doctors had requested to stop all communication with the hotel’s counsel “as her microaggression has exacerbated my PTSD.” He indicated that he would only communicate with the tribunal going forward.

The worker corresponded only with the tribunal for a couple of months until he wrote to the law firm of Fairmont’s counsel – copying the tribunal – advising that he intended to sue for “defamation of character and discrimination of mental health disability.” The email was signed “legal counsel representing [the worker] but it came from the worker’s email address.

On May 3, the worker sent the tribunal an email advising that he had applied for provincial government assistance “based on the exacerbation of my mental health due to the human rights violations of [Fairmont’s counsel] and her sociopathic law firm.” The tribunal reiterated its direction and the worker continued to refer to “the racist law firm” that was threatening his mental health.

The BC government re-established the province’s Human Rights Commission in 2018 after a 16-year absence.

Purpose of code not furthered

Fairmont maintained that it would not further the purposes of the code to proceed with the complaint, as the worker’s communications to its counsel were “consistently rude, abusive, derogatory and improper” and impacted the efficiency of the tribunal’s process. The worker argued that he had the right to “angry and indignant about racism.” He claimed the counsel’s law firm disrespected his complaint and triggered his mental health issues with “microaggressions.”

The tribunal found that the worker’s emails to Fairmont’s counsel were improper conduct, as his indignation at the lawyer for representing the hotel despite her being racialized was expressed in vulgar and insulting ways. The worker also made serious and unfounded allegations against the counsel personally and against her law firm, said the tribunal.

The tribunal agreed with the worker that he had a right to be angry about racism and the complaint process could be difficult, but it said that he didn’t have a right to make offensive comments based on the counsel’s race or against others at the law firm. It was made clear to the worker that such communications were inappropriate, but the worker continued with them.

The tribunal noted that the worker raised the issue of mental health issues, but he didn’t provide any medical information that suggested any disability that impacted his ability to treat Fairmont’s counsel with courtesy and respect – noting that his correspondence with the tribunal was respectful.

The tribunal determined that the worker “flagrantly disregarded” its instructions to communicate civilly. Although the matter dealt with a serious issue of alleged workplace racism, the tribunal found that the worker used the process to personally target the hotel’s counsel and make inappropriate comments about her law firm and Fairmont’s HR employees. As a result, it would be contrary to the purposes of the code to condone the worker’s conduct and proceed, said the tribunal in dismissing the complaint. See Miremadi v. Fairmont Hotel Vancouver (No. 2), 2023 BCHRT 53.