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Apr 4, 2012

Credit for righting a wrong

Recognizing, fixing a violation of employees’ legal rights can lessen the damage

By Jeffrey R. Smith

Have you ever wanted a do-over?

It’s always good to learn from mistakes, and the opportunity to fix an error is tantalizing. However, fixing it doesn’t necessarily erase it.

Employers sometimes make mistakes when dealing with employees, intentionally or not. Whether it’s through malicious intent, ignorance of their obligations or carelessness, these mistakes can have serious ramifications for employees. But if an employer takes action to remedy a mistake in employment law, should it still be punished?

An employer in France was recently fined by the French Supreme Court for racial discrimination against a job applicant. The applicant, who was a francophone from North Africa, was told by a manager that the manager did not trust her “people.” As a result, the deputy manager overseeing the hiring process told the applicant she could not be hired immediately because of the manager’s comments. However, two weeks later the deputy manager hired the applicant while the manager was on holiday.

The employee later filed a racial discrimination complaint and the court found she had lost two weeks’ pay because of the discrimination. The employer was ordered to pay 2,000 Euros ($2,600) to the employee as damages.

A racial discrimination complaint is serious for an employer, whether in France or in Canada. It’s probably safe to say had the employer not ended up hiring the applicant, it would have been on the hook for more damages. But since it did, it ended up paying only for the wages the employee lost from not being hired initially.

However, discrimination in employment can cause more than just financial damage. But an employer who violates someone’s human rights in their employment, but remedies the situation fairly quickly, should get credit as for recognizing its mistake and taking action. But does that erase the effects of the mistake?

Maybe it depends on how the employer handles the mistake. If the employer in the above situation continued to employ the offending manager without repercussions, that might open it to more potential damages.

However, if it disciplined and trained the manager on human rights sensitivity, perhaps that would be enough. How much should an employer be held responsible for violating an employee’s legal rights, whether it’s discrimination or wrongful dismissal, if it takes action to right its wrongs?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at For more information, visit

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