An employee who has been discriminated against may be entitled to compensation for “injury to dignity, feelings and self-respect” (commonly referred to as “injury to dignity damages”) resulting from the discrimination. But what are injury to dignity damages exactly? What is their purpose? and how are they calculated?
What is the purpose of injury to dignity damages?
When an employee has been discriminated against, the BC Human Rights Tribunal can order the employer to compensate them for lost wages (if any) resulting from the discrimination. Sometimes the employer may also be required to offer the employee their position back. Generally, the purpose of such compensation is to “make the employee whole” again, meaning that they are placed in the same position that they would have been without the discrimination.
But an employee who has been discriminated against does not just suffer a loss of income and employment (and in some cases, they suffer neither). They also suffer simply from having experienced discrimination. There is an inherent injury to dignity whenever a human right has been violated.
Even if an employee were to be awarded full back pay and reinstatement, this would still fail to adequately compensate the employee for the fact that their human rights were violated. Therefore, injury to dignity damages are intended to compensate the employee for having suffered the act of discrimination. As explained by the Tribunal in a recent decision:
The purpose of an injury to dignity award is to compensate the complainant for the actual harm they have suffered as a result of the discrimination.
How is it calculated?
Whereas lost wages may be calculated with mathematical precision, quantifying injury to dignity damages is problematic. The Tribunal has the daunting task of assigning a dollar value to harm suffered because of discrimination. To do so, the Tribunal has developed a framework for assessing damages.
To determine how much an individual ought to be awarded for injury to dignity damages, the Tribunal looks at injury to dignity awards from past cases as a comparison. Similar past cases provide a useful guide as to what would be appropriate in the present case.
Although a comparison to past cases is largely helpful, some caution is required because injury to dignity awards have been on the rise for several years. This means that older cases may now be less useful (or at least the injury to dignity awards in those cases may need to be scaled up).
While past cases can be helpful when assessing injury to dignity damages (particularly recent past cases), each case is highly fact-specific. Two cases that appear similar on the surface may result in very different awards. There are several factors in particular that the Tribunal considers when making an award, including:
- The nature of the discrimination;
- The vulnerability of the person discriminated against; and
- The effect of the discrimination on that person.
Other factors may be considered by the Tribunal as well, such as the time period/frequency of the discrimination as well as “the totality of the relationship between the parties” (see this recent Tribunal decision for example).
There are many challenges to predicting an injury to dignity award precisely. Only a handful of decisions are released each year, so there are relatively few cases to compare against. Each case is highly fact-specific, meaning that it can be challenging to find a recent decision that is closely comparable to the present case, and meaning also that awards in somewhat similar cases may vary considerably. And the recent increase in injury to dignity awards means that awards in past cases may no longer be useful comparisons. Despite these challenges, comparing against similar past cases still provides the best guide of what to expect as an award from the Tribunal for injury to dignity damages.
About the Author
Brendan Harvey advises and represents employees and small businesses at all stages before, during, and after the employment relationship. His primary areas of practice include wrongful dismissal, employment standards, and human rights litigation. If you would like to schedule a meeting with Brendan Harvey or any other of our lawyers, give us a call at 604-988-1000.