Woman who was not invited on a company ski day was subsequently fired, but has won her case at the Ontario Human Rights Tribunal
Leaving a woman out of a company ski day didn’t go down well with the Ontario Human Rights Tribunal, says Sheryl Smolkin.
The Ontario Human Rights Tribunal has ruled that a “Men Only” ski day for male salespeople and clients discriminated against female sales executive Sheryl McConaghie who did not receive an invitation.
The Tribunal also concluded that an act of reprisal occurred when she was later fired after complaining about the event. She was awarded six months’ salary for the period until she got a new job, plus $18,000 as compensation for injury to her dignity, feelings and self-respect.
This case is a reminder to employers that invitations to company functions cannot discriminate based on a prohibited basis under human rights legislation. Employers also cannot fire employees who complain about discrimination on the job.
Between September 2008 and March 2012 McConaghie was employed by Systemgroup Consulting Inc. in Mississauga as Director of Business Development. She sold Microsoft-based information technology solutions to corporate clients.
On January 20, 2012, Systemgroup sponsored a customer appreciation day at Mansfield Ski Club’s “Men’s Day 2012.” The ski club’s brochure advertised the event as “A day for men without women and children,” using the tag line “Bring your friends, bring your acquaintances, just don’t bring your wife!” The company’s electronic calendar invitation to Men’s Day listed planned activities including “massage” and “Hooters Girls.”
McConaghie is a woman so she did not receive an invitation. However she heard about the event from other sales representatives and clients.
“As a woman working in a male-dominated industry I let certain things go,” she says. “But this went too far. I had to speak up.”
She complained to both her immediate supervisor and the company owner/president. Neither of them agreed with her or several other male sales representatives that a gender-exclusive event like Men’s Day was inappropriate.
When she was fired less than two months later, she filed a complaint with the Ontario Human Rights Tribunal alleging that her exclusion from participating in the customer appreciation day was discrimination on the basis of sex. In addition, she claimed that her subsequent firing amounted to reprisal by the company, also a violation of the provincial Human Rights Code.
At the hearing, Systemgroup acknowledged McConaghie was left out of the event. However the company denied that treating her differently was discrimination under the Code, because they said the exclusion had no real impact on her. The company also argued that she was fired for poor performance and not as reprisal for her complaint.
Evidence at the hearing revealed that during McConaghie’s meeting with the company, president Ken Ryder defended the event by saying, “Hooters Girls didn’t actually attend and even if they had, it would just be to raise funds for disabled skiers.” Similarly, he noted that massages were by professional physiotherapists so there was no sexual connotation.
Adjudicator Ruth Carey found the company response particularly surprising because the organization has an extensive employee handbook outlining both harassment and non-discrimination policies extending to sanctioned offsite social activities.
Since the purpose of the customer appreciation event was to strengthen client relationships, she concluded the event sexually discriminated against McConaghie by undermining her ability to compete on the same playing field as her male peers.
Documentation filed with the tribunal also revealed that with the exception of a brief period when she was going through a divorce, she met or exceeded company sales targets.
Therefore, Carey ruled that she was fired primarily because she complained about the men-only ski day and not as a result of work-related performance issues. McConaghie was awarded a total of $18,000 plus lost wages and commissions for the six months she was unemployed.
The company has filed an appeal on the basis that the termination award should not exceed four weeks as set out in her employment contract.
McConaghie’s lawyer Phillip R. White from the Toronto firm of Grosman, Grosman & Gale LLP says, “The law is clear. An employment contract limiting liability in a case of wrongful dismissal will not prevail when workplace discrimination violates an employee’s human rights.”