CAPE Successful in LaBranche Religious Discrimination Case

January 18, 2011

In January 2007, CAPE member, Valéry LaBranche, filed a grievance alleging breaches of the Canadian Human Rights Act (CHRA) and the no discrimination clause of the collective agreement with her employer. Among other discriminatory conduct, Ms LaBranche was the target of anonymous anti-Semitic correspondence in her workplace. The salient points at issue in this matter were the failure of the employer to protect the employee from religious discrimination, the failure of the employer to recognize and acknowledge religious discrimination, and the failure of the employer to accommodate the employee once the discrimination began to affect her physical and psychological wellbeing.

In May 2010 decision, the Public Service Labour Relations Board (PSLRB) issued its decision in the case (see LaBranche v. Treasury Board (Department of Foreign Affairs and International Trade) http://pslrb-crtfp.gc.ca/decisions/summaries/2010-65_e.asp

In her decision which attracted national media attention, PSLRB Adjudicator Michele Pineau, found that Ms LaBranche had been discriminated against because of her adherence to the laws of Judaism and that her employer did little or nothing to help her. The decision has been reported in a recent issue of Lancaster House Human Rights and Privacy Bulletin (see Lancaster’s Human Rights and Workplace Privacy E-Bulletin, Issue 146, October 29, 21010), which made the following observations:

This case reaffirms the responsibility of an employer for the work environment. Given that human rights legislation is remedial, it makes sense that liability for discriminatory behaviour rests with the entity that is best able to address and eliminate it. This was the sentiment advocated by the Supreme Court of Canada in Robichaud when it emphasized that "only an employer can provide the most important remedy – a healthy work environment."

In claiming that it could not be held responsible for the discriminatory behaviour of unknown persons, the employer in this case attempted to hide behind its inability to identify the author of the anonymous correspondence. However, as Adjudicator Pineau pointed out, the Supreme Court in Robichaud could not have been clearer on this point: the CHRA focuses on the removal of invidious discrimination and not on punishing those who discriminate. The CHRA is geared to providing relief to the victim of discrimination, and it is the results of discriminatory actions that are significant.

Similarly, an employer cannot hide behind its benign intentions as a justification for discriminatory behaviour. Pineau noted that Ontario (Human Rights Commission) v. Simpson Sears Ltd., [1985] 2 S.C.R. 536 "is unambiguous in stating that an intention to discriminate is not a necessary element of the discrimination generally forbidden in human rights legislation." The motives of those who discriminate are not the concern; what matters is remedying the objectionable conditions.

In rendering her decision, the adjudicator reserved her decision as to the appropriate remedy on the understanding that the parties would attempt to reach their own agreement. CAPE is pleased to announce that such an agreement was reached in December, 2010.

“The original May 2010 decision was a significant win on behalf of federal government employee.” said CAPE Director of Labour Relations and Acting Executive Director Jean Ouellette “This case emphasises the fact that bargaining agents are relevant and effective entities that serve the greater good of their members. We abhor the treatment to which Mme. LaBranche was subjected, and congratulate her on her vindication.”