The BC Human Rights Tribunal has ruled in favour of accepting a late-filed racial discrimination complaint from a former employee of Hermann’s Jazz Club in Victoria, noting it has not widely dealt with allegations of anti-Black racism.
The complaint, filed in June 2023, alleged discriminatory treatment based on race, colour, and other grounds during his employment in December 2021.
Despite being filed six months beyond the statutory deadline, Tribunal Member Steven Adamson found it in the public interest to allow the case to proceed.
A.G., who identifies as a Black Indigenous African from the Ethiopia/Sudan region, claimed that he was subjected to racially charged mistreatment, including accusations of cannabis use, being assigned degrading tasks, and experiencing hostility from management. He also reported that when he raised concerns about discrimination, his employment was terminated on December 17, 2021.
The primary issue before the Tribunal was whether the complaint, which exceeded the one-year time limit under Section 22 of the Human Rights Code, should be accepted. The Tribunal has the discretion to allow late-filed complaints if it is in the public interest and if no substantial prejudice results from the delay.
Mental health delays considered
In his decision, Adamson noted that A.G.’s delay in filing the complaint was largely due to mental health challenges following his time at the club. “(His) reasons for his delay focus on his mental health and prior brain injury,” Adamson wrote, acknowledging that the trauma A.G. endured left him with symptoms of depression that prevented him from filing the complaint earlier.
A.G. had also reported that the combination of his depression and brain injury made it difficult for him to focus on basic tasks. “He reports focusing on healing instead of initiating a complaint,” the decision stated.
The Tribunal gave significant weight to the mental health factors involved, referencing prior decisions where such conditions were recognized as valid reasons for filing delays. Adamson cited the MacAlpine v. Office of the Representative for Children and Youth case, in which mental ailments that impair day-to-day functioning were considered in favour of accepting a late-filed complaint.
Allegations of racial discrimination
The Tribunal outlined A.G.’s allegations of racial discrimination, including claims that he was the only Black employee at Hermann’s Jazz Club and faced differential treatment compared to his non-Black colleagues. These allegations include:
- Accusations of smoking cannabis at work, allegedly rooted in racial stereotypes, despite it being known that he did not consume drugs or alcohol.
- Being assigned degrading tasks that non-Black employees were not required to perform.
- Aggressive and raised voices directed at him by management, who reportedly spoke “cheerfully” to non-Black staff.
- Laughter and a racial slur uttered by a manager when A.G. reported being groped by patrons.
- Exposure to derogatory racist language in the workplace.
- Not receiving payment for his work.
- Termination of his employment after raising concerns about discrimination and asking to speak with someone in human resources.
The club has denied the allegations, arguing that it has a diverse workforce and suggesting that A.G. could have pursued less arduous legal remedies through other avenues, such as the Employment Standards Branch or WorkSafeBC.
Tribunal weighs public interest
In assessing the public interest in accepting the late-filed complaint, Adamson noted that A.G.’s case addresses allegations of anti-Black racism, a context that has not been widely dealt with by the Tribunal. While the Tribunal has issued decisions on employment-related discrimination, the specific focus on anti-Black racism remains relatively uncommon in its jurisprudence.
Referencing the Tribunal’s decision in Umolo v. Shoppers Drug Mart, Adamson stated that “anti-Black racism may share themes with other forms of racism but is distinct and should be assessed within its own context.” He found that this factor weighed in favour of accepting the complaint, citing the need for the Tribunal to continue addressing such cases within the broader goals of equity and justice in the workplace.
No substantial prejudice
The Tribunal also considered whether accepting the late-filed complaint would result in substantial prejudice to Hermann’s Jazz Club. The club had expressed concerns about potential prejudice, particularly regarding the availability of witnesses who were no longer employed there. However, Adamson found that these challenges did not amount to substantial prejudice.
“While the Employer has raised prejudice concerns related to former employees, it has not stated that they cannot be contacted,” Adamson wrote. He concluded that, although gathering evidence may be more difficult, it would not constitute sufficient grounds to reject the complaint.
For more information, see Gerezghez v. Hermann’s Jazz Club, 2024 BCHRT 250.
