Case Summary #1: Human Rights Considerations

The Sales Associate vs. Aurora Biomed Inc. and others

Instructor: TJ Schmaltz

British Columbia Institute of Technology

Written by:
 Case Summary #1: Human Rights Considerations

This case summary looks into the decision made by the British Columbia Human Rights

Tribunal on the 2021 case The Sales Associate vs. Aurora Biomed Inc. and others.

 Facts:

A Sales Associate (the name was omitted due to a Limit of Publication application, granted by the

Tribunal) was employed to work for Aurora Biomed Inc on January 3, 2017, a company founded and

run by Dr. Dong Liang and his daughters, Sophia Liang (Sales Associate's direct supervisor) and Fay

Jang (head of Human Resources). The company "sells instruments for analytical chemistry and

medical use.” (BCHRT 5, 2021, p.9). The Sales Associate had a bachelor's and a master’s degree in

science, qualifications that made her an appropriate fit for selling the company products, although it

was her first job working with sales.

 Alleged discrimination/Violation of the Code:

The Sales Associate alleged discrimination based on her sex throughout her employment at Aurora,

violation of s.13 of the Human Rights Code, as Dr. Liang used to make comments about her

appearance, calling her “beautiful girl” or “beautiful lady” and telling her to smile more because it

made her “look better” while working, making her feel uncomfortable at work. The respondents

denied that Dr. Liang said anything inappropriate to the Sales Associate.

She also alleged that her employment termination was retaliation for her objection against Dr. Liang's

comments and the possibility of the Sales Associate to fill a human rights complaint, in violation of

s.43 of the Code. The respondents said the employment was terminated due to poor performance.

 Decision of the Tribunal:

Firstly, regarding the allegation of discrimination based on sex, the Tribunal took into consideration

the concept of sexual harassment or “unwelcome conduct of a sexual nature that detrimentally affects

the work environment or leads to adverse job‐related consequences” from the decision Janzen v. Platy

Enterprises, 1989 CanLII 97 (SCC); Basic at paras. 89‐91. The tribunal also considered section 13 of

the Human Rights Code that protects against treatment or impact in the employment connected to her
 Case Summary #1: Human Rights Considerations

sex (Moore v. BC (Education), 2012 SCC 61.at para. 33.), therefore, evaluating if the conduct of Dr.

Liang affected the Sales Associate in any way at work.

Secondly, to address the allegation of discrimination on the termination of her employment with

Aurora, the Tribunal considered section 43 of the Human Rights Code that protects individuals from

retaliation for possibly being involved in any Human Rights complaint and performed a three-step test

to check if there was a retaliation from the decision Gichuru v. Pallai, 2018 BCCA 78 at para. 58. And

the decision Harrison v. Nixon Safety Consulting and others (No. 3), 2008 BCHRT 462 at para. 325,

where an employer was fired for raising a good-faith complaint of sexual harassment.

The tribunal also considered the decision Jamal v. TransLink Security Management and another

(No.2), 2020 BCHRT 146 at para. 106 to review the employer’s response to the complaint of sexual

harassment made by Sales Associated.

And finally, the Tribunal used the three-part test from Moore v. BC (Education), 2012 SCC 61.at para.

33., to establish a prima facie case of discrimination on her termination.

 Final Result:

The Tribunal considered the comments of "beautiful girl" or "smile more" made by Dr. Liang

inappropriate but not essentially sexual. Therefore, did not configure as sexual harassment or

“unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to

adverse job‐related consequences”: Janzen v. Platy Enterprises, 1989 CanLII 97 (SCC); Basic at paras.

89‐91.

However, the Tribunal agreed that Dr. Liang's comments discriminated against the Sales Associate

based on her sex, violating section 13 of the Human Rights Code that protects against any adverse

treatment or impact in the employment that is connected to her gender. The personal intentions of Dr.

Liang are irrelevant, as his comments made the Sales Associate feel degraded at work, and not valued

by her qualifications, but for her appearance, impacting her work.

 Case Summary #1: Human Rights Considerations

In addition, the respondents took no action to mitigate or apologize for the inappropriate conduct of

Dr. Liang, but ultimately terminated her employment, which configures overall discriminatory conduct

from the company. Therefore, the tribunal performed a three-part test to establish a prima facie case of

discrimination and concluded the termination of the Sales Associated for reasons related to sex

violated section 13 of the Code.

Moreover, the tribunal agreed that the reason for the Sales Associate’s termination was connected to

the fact she made a complaint about sexual harassment to the company’s Human Resources and then

shortly after was terminated. The respondents never conducted a formal performance evaluation that

could prove that the Sales Associated had a poor performance or never warned her about her work

performance either, nothing that could support their response. After performing a three-step test based

on Gichuru v. Pallai, 2018 BCCA 78 at para. 58, the Tribunal, the tribunal decided the employment

was terminated in violation of sections 13 and 43 of the Code.

Given the above, the Tribunal determined compensation for wages lost due to the termination of her

employment was based on discriminatory reasons and compensation for injury to her dignity, feelings

and expenses suffered because of the discrimination. The tribunal also determined that Aurora institute

a proper complaint mechanism and human rights policy that specifically addresses sexual harassment

to avoid a similar situation happening again in the company.

 Personal Analysis:

I believe the comments made by Dr. Liang were indeed inappropriate and unnecessary in the

workplace.

Although they had no sexual connotation and therefore did not configure sexual harassment, they

contributed to the Sale Associate not feeling comfortable at work, the reason why she made a

complaint to her human resources manager to prevent this behaviour. The human resources manager,

the daughter of Dr. Liang, handled the situation poorly as she and Dr. Liang mistaken sexual

harassment for sexual assault, saying that Dr. Liang never touched the Sales Associated or indicated

an interest in sexual conduct with her. And then accused the Sales Associated of defamation.
 Case Summary #1: Human Rights Considerations

As the human resources manager, Fay Jang should be knowledgeable about the differences between

sexual assault and sexual harassment and the legal obligations under the Human Rights Code. And, as

mentioned by the Tribunal, “the Code is a very important part of this province’s laws governing

employment and ignorance of those laws is no defence to a complaint of discrimination” (BCHRT 5,

2021, p.34). But in this situation, the Sales Associate had to explain the difference between the

concepts to her and Dr. Liang, which is unacceptable conduct for a Human Resources representative.

The conduct of the Human Resources manager during the meeting with the Sales Associate was also

not appropriate as they did not take her complaint serious (due to their lack of understanding of the

concepts), they invited two witnesses for the meeting that were chosen by the Sales Associated,

therefore did not contribute to helping her feel more comfortable, but rather intended to help protect

the employer, and finally, accused her of defamation, tried to make her sign a statement that her

accusations were false (in a desperate tentative to protect Dr. Liang), and fired her in the next day.

Connecting the termination to her complaint and, therefore, configuring discrimination against the

Sales Associate.

It is also important to mention that the Aurora company had no real policy for discrimination in the

workplace was just “please report to human resources manager immediately”, and it does not address

any concepts or provide any training against discrimination in the company. Besides that, the whole

complaint mechanism is compromised once the supervisor and the human resources manager are

daughters of the company’s owner, and therefore, have a personal interest in protecting their father.

Another unfair act from the employer, leaving its employees with no real support for their complaints.

In conclusion, the tribunal was corrected on concluding that was discrimination based on Sales

Associate during her employment and in her termination process, violating section 13 of the Code.

And the violation of sector 43 as they terminated her employment because she was involved in a

possible human right complaint. Finally, I found the utmost importance that the managers implement a

new human rights policy, as a way to educate themselves about human rights concepts, the importance
 Case Summary #1: Human Rights Considerations

of the Human Rights Code for employment relationships and to avoid the situation to happen again at

the company.
 Case Summary #1: Human Rights Considerations

References

BCHRT 5, 2021. RSC 1996. Retrieved from

http://www.bchrt.bc.ca/shareddocs/decisions/2021/jan/5_The_Sales_Associate_v_Aurora_Bio

med_Inc_and_others_No_3_2021_BCHRT_5.pdf

Human Rights Code, 1996. Retrieved from

https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01#section43