Stuart Rudner here with another Rudner Law video employment law update.
This time we’re going to be talking about the end of Lisa LaFlamme’s time as anchor of CTV National News, and all of the controversy that has generated, and all the discussion about hair colour, gender, and sex discrimination.
It’s very interesting to see how the end of her time as anchor was different than her predecessor Lloyd Robertson. First of all, he was 77 when he stepped down; she was 58 when her contract was terminated. He had gray hair for many years while he was anchor. When she let her hair grow gray there were some internal comments at CTV, and as she put it she was blindsided, not long later, when her contract was terminated. Whereas when he decided to retire he was given a long time to say goodbye and exit gracefully.
So many companies and people have expressed their support for Lisa, and implicitly or explicitly their criticism of CTV. Best example in my mind is probably Wendy’s, who allowed their iconic photo of Wendy to replace her red pigtails with gray hair, and then tweeted “because a star is a star regardless of hair colour”. I’ve got to say, this is risky for a lot of companies, because as the old saying goes, judge not lest ye be judged yourselves, and these companies that are implicitly or explicitly condemning CTV better hope there’s no evidence of similar age or gender discrimination in their own organizations.
This brings us to an important point: did CTV do anything unlawful? It’s clearly questionable HR, clearly very poor PR, which is surprising for a leading media outlet in Canada, but was there anything legally wrong with what CTV did? So first of all I need to say I’m not privy to the terms of Lisa’s contract or any other confidential information, but at a general level I can offer some comments.
First of all, as we always tell people, aside from unionized employees, Canadian employees do not have job security and can be let go at any time for almost any reason as long as they receive the notice or the compensation, what we usually refer to as severance, that they’re entitled to. I said almost any reason because the termination cannot be based upon a ground that is protected by human rights, such as gender, or age, or disability, or sexual orientation. So as I often joke, you can lose your job because of the colour of your shirt but not because of the colour of your skin, or in this case perhaps, the colour of your hair.
Now in most of the cases that we deal with, there is no smoking gun, there is no email saying to fire someone because they are too old or look too old, usually it’s a circumstantial case. So in this context, we look at the differences in the way that Lisa LaFlamme was treated compared to Lloyd Robertson. Certainly suggests on its face that there was different treatment based upon gender. Now, CTV has said that that is not the case at all, that the decision to terminate Lisa LaFlamme’s contract was due to changing viewer habits. Interestingly, the person that seems to be behind the decision is now on a leave of absence, so we’ll have to see what happens there, but there does seem to be evidence that comments were made after she allowed her hair to go gray, and then of course we know that she was let go not long later.
Ultimately the burden of proof in a case like this is on the complainant, they have to show that the termination, or perhaps a failure to hire someone, or any negative treatment, related to a ground protected by human rights legislation. Now, it’s important to note that the burden of proof is not beyond a reasonable doubt, this is not a criminal trial, it’s not like the TV shows and the movies that we all watch, the burden of proof, or the standard of proof I should say, is the balance of probabilities. In other words, what is more likely than not. So even without a smoking gun per se, you can find a breach of human rights based upon all of the circumstances and the evidence in comparison to other situations within the organization. In this case, the optics certainly seem to suggest there was a connection between Lisa LaFlamme’s hair colour, which related to her gender and her age, and the decision to terminate her role as anchor. And it’s important to note that the human rights ground only has to be a tiny portion of the reason for termination to be a breach of human rights.
There was a great case many years ago where an individual was performance managed and clearly struggling, clearly having performance issues, and the company did everything right, and they documented their concerns, and they warned him and they trained him, and eventually they let him go. The problem is that when they let him go it was because he asked for a day off for a religious holiday, and the company said no and he took the day off anyways, and they fired him. And what the finding was was that there may have been perfectly legitimate reasons to let him go, but at least a part of the reason that they did it when they did it was due to his religion, which was a breach of human rights.
So even in this context, there may have been changing viewer habits, and we know that the way that people consume news has changed, but if Lisa LaFlamme’s age or gender had any role in this then it would be a breach of the Human Rights Code.
The bottom line is CTV is going to have to show that their decision had nothing to do with age, or gender, or any protected ground, or they’re going to face liability. There can be substantial legal consequences for this type of decision, in addition, of course, to HR concerns and PR issues as we’re all seeing right now.
Our firm works with employers and employees to navigate situations like this, so if you’re contemplating a termination, or if you have been dismissed or feel as though you’ve been discriminated against, please check out our website, and in particular our FAQs, which we have bolstered recently, and then please contact us so we can give you the advice that you need.
Thanks and have a great day.