Province Ordered to Compensate Former Corrections Officer Over $964K Following Racial Discrimination

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In a decision released on January 28, 2021, Francis v. BC Ministry of Justice, 2021 BCHRT 16, the BC Human Rights Tribunal ordered that the BC Ministry of Justice compensate a former corrections officer over $964,197 plus interest following racial discrimination in his employment. The award was for past and future wage loss, and included the highest award the tribunal has ever made in its history for injury to dignity, feelings, and self-respect. The Complainant, Mr. Francis previously worked for the North Fraser Pre-Trial Centre in Port Coquitlam. His colleagues and supervisors made racist comments to him, about him, and about other coworkers.

The tribunal’s initial decision of July 4, 2019, which found that discrimination occurred, made the following findings:

  • that the complainant was stereotyped as “slow” when opening doors in control when there was no credible basis for his colleagues to conclude that he was
  • that someone at work said to the complainant, “because you’re Black” as a sarcastic remark because he was aware that the complainant had, in the past, alleged that he was being picked on because he is Black.
  • that one supervisor said to another supervisor about the complainant, words along the lines of “maybe if you turn on the lights you can see him,” because of the complainant’s skin colour
  • that a colleague, while telling a story about a former fellow officer who had the appearance of a Black-skinned person, used the N word slur
  • that the complainant was singled out and treated differently than other employees
  • that someone called the complainant a “Toby” at work, which carries the same connotation as slave
  • that one colleague called the complainant an “LBM,” referring to a “Lazy Black Man”
  • that a colleague circulated a photo to the complainant of an African warlord accompanied by a news article about killing inmates
  • that a colleague stated to another colleague something like “sorry you have to work with that [N word]” in relation to the complainant
  • that the complainant was called a “rat” and told he had a “target on his back” after complaining about the above behaviour

Ultimately, the complainant left his position and, understandably, did not go back. The BCHRT found that he had been subjected to a poisoned work environment. When there is a poisoned work environment, departing may be the only reasonable option.

In the recent decision regarding a remedy for this discriminatory conduct, the BC Human Rights Tribunal made the highest award for injury to dignity, feelings, and self-respect in its history. Previously, the tribunal’s highest award under this heading was for $75K. However, in the precedent-setting decision, Mr. Francis was awarded $176,000 under this heading after it was reduced from $220,000 by a 20% contingency.

The reasons for the Tribunal’s relatively high award are set out by the Tribunal as follows:

[216] The Contraventions amounted to an exceptionally damaging affront to Francis’ dignity. The evidence presented to this effect was abundant, clear, and compelling. The nature of the discrimination was serious. This is not a case where the connection to Francis’ race and colour was subtle. The comments and actions of his coworkers and supervisors struck at the core of Francis’ identity and feelings of self-worth and emotional well-being. What Francis experienced encompasses virtually the entire spectrum of racial discrimination and harassment in the workplace, escalated into retaliatory behaviour, and resulted in a poisoned work environment, necessitating a significant award of compensation. Francis was particularly vulnerable because of the nature of his job. His physical safety was threatened and compromised by the discriminatory and retaliatory behaviour of officers and supervisors who he needed to count on to be safe at work. He had a genuine fear that if something dangerous were to happen at work, he could not count on his colleagues for help. The impacts on Francis were extreme, and as Dr. Macdonald observed, his mental illness has become more deeply rooted over time. As Dr. Smith observed, Francis is “seriously ill from a psychiatric point of view”. Not only did Francis lose his employment, but he has also lost his ability to work. His wife feels sickened by how this case has impacted her husband — “it has destroyed him as a human”. That is what happened to Francis and, as such, he is entitled to an award commensurate with that loss of security and dignity.

The Tribunal stated the following about whether the Complainant was too sensitive and over reactive:

[161] Francis experienced “everyday racism” in the form of racialized comments and slurs. The Respondent seeks to minimize the severity of four of these comments on the grounds that Francis was not present when the “nigger” and “turn on the lights” comments were made, the supervisor apologized after directing Francis to do something “because you’re black”, his Control partner stopped calling Francis a “Toby” after he made clear that he did not like the name. Regardless of the view taken by the Respondent, all of these comments and slurs were found in the Liability Decision to amount to racial discriminatory harassment in contravention of the Code. That Francis was not present when two of them were made does not detract from the finding that the cumulative effect of the Contraventions was profound on Francis: Liability Decision, para. 336. Attempts to trivialize the impact of racialized comments and slurs on Francis plays into the myth and misconception that, as a racialized person, Francis was too sensitive and overreactive: Liability Decision, para. 289.

The past and future wage loss amounts awarded by the tribunal reflected that Mr. Francis lost his employment and likely his ability to ever work again as a result of the discrimination. The amounts were based on economist reports and reduced by a 20% contingency to reflect that about 80% of the losses Mr. Francis experienced flowed from the discriminatory conduct that the province was held responsible for. The past loss of earnings award was $262,060, the future loss of earnings award was $431,601, and the pension loss award was $65,881.

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