Jun 19, 2024

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It is one of the highest injury to dignity awards -- $50,000 -- the BC Human Rights Tribunal(“Tribunal’) has so far given a complainant.

Tribunal Member Catherine McCrearyfound that PN, 28-year-old Filipina caregiver, was discriminated against based on her sex, family status, age, race, ancestry, colour and place of origin. The Tribunal found that “every aspect of her employment, including the contract, was exploitation that amounts to discrimination”. The Tribunal summarized the six-week harrowing experience of PNas amounting to exploitation and sexual abuse upon her arrival in Canadaafter being brought from Hong Kong by her employer, FR, in PN v. FR and another (No. 2), 2015 BCHRT 60 (http://www.bchrt.bc.ca/law-library/decisions/2015/pdf/apr/60_PN_v_FR_and_another_No_2_2015_BCHRT_60.pdf ) thus:

PN is a mother from the Philippines. She was hired through an agency to work in the respondents' home in Hong Kong as a housekeeper and caregiver to the respondents' two children. She worked for the respondents in Hong Kong for about one year. She came with the respondents when they moved to Canada and worked for them here. She was here for about six weeks when she fled their home, which was a two-bedroom suite in a hotel. She says that, for much of her employment, she was the victim of ongoing sexual assault by FR and harassment, including assault, by MR.

Once she left the respondents' hotel, PN stayed at a secure women's shelter for victims of human trafficking. PN was without resources as she had no visa for work in Canada and she could not qualify for income assistance. FR made a number of efforts to have her returned either to Hong Kong or to the Philippines…

PN was a virtual slave. She could not go anywhere or do anything without permission. She could not go out on her own or speak to people in her own language, even though there were people around the hotel with whom she could have struck up such a friendship. While she was allowed to sleep, it was in between the respondents' bedrooms so she was virtually on call 24/7. She was frequently humiliated and demeaned by MR who threatened her, called her names and threatened to deduct wages were she to sit down while at work."

The Tribunal also discussed the evidence of Dr. Anna Guevarra, an expert in immigrant labour, race and ethnicity, among others, regarding “stereotypes and prejudices of Filipino workers, especially in Hong Kong” thus:

[S]tereotypes or prejudices that apply to Filipino domestic workers revolve around characteristics that mark them as "docile" workers. That is, Filipino domestic workers are often marketed as obedient, hardworking, God-fearing, loyal, honest, cooperative, and compliant. At the same time, she says that they are also promoted as highly educated, skilled, and exhibiting a high tolerance for stressful conditions.

… Hong Kong employers typically stereotype foreign domestic workers, and especially Filipino women, as carrying a particular kind of "modernized" sensibility that makes them morally suspect. Hong Kong employers are said to perceive Filipino domestic workers' sense of independence and readiness to leave their families in the Philippines not as a sign of filial piety, but instead, as a sign of financial desperation that could lead to acts of transgression. She notes that these perceived transgressions are often of sexual nature, such as seducing a male member of the household or engaging in sideline sex work for the purposes of permanent residence and financial security. Thus, the Filipino workers are often seen as a threat to the female employer of the household. As a result, Filipino domestic workers' physical appearance or attractiveness, such as their clothing, hairstyle, and physical adornments have all become routinely subject to scrutiny and discipline.

The Tribunal linked these stereotypes and prejudices to the protected grounds in the BC Human Rights Code (“Code”) such as sex, race, place of origin, and age and as exacerbating the exploitation of female caregivers from the Philippines. An excerpt of the Tribunal’s observation provides:

…In terms of their gender, or sex, the stereotypes and prejudices that govern how Filipino domestic workers are perceived often relate to them being women. As Filipino women, they are perceived to be "naturally inclined" to perform this kind of domestic care work, even as they are "naturally" or "culturally" inclined to exhibit morally suspect behaviours.
…. Filipino women are perceived to come from a poor nation that is unable to provide any viable employment and has created a class of workers who are desperately trying to leave their country… the preference for Filipinos as care workers/domestic workers is often guided by the perception that workers from the Philippines possess a work ethic and values related to family, loyalty, and authority that translate to their docility in the workplace…

…. these stereotypes and prejudices also empower employers to exercise their authority over their workers.

The case is important not only because of the high damage award; it is also the first time the Tribunal examined and validated the vulnerability of female live-in caregivers from the Philippines through a human rights lens and linked the use of stereotypes to facilitate exploitation amounting to discrimination.Noteworthy too is that fact that although PN was forced to work in Canada illegally as she only had a visitor's visa, she was nonetheless protected under the Codeand the actions of her employer were measured under the same law.

Persons who believe that they have suffered discrimination may file a complaint before the BC Human Rights Tribunal (http://www.bchrt.bc.ca). BC has a direct access complaint system where individuals who allege that their human rights have been violated can file complaints directly with the Tribunal that is responsible for addressing complaints via mediation resulting in a settlement, or a hearing resulting in decision. Persons seeking assistance in filing a complaint may contact the BC Human Rights Clinic (http://www.bchrc.net). Persons who need assistance in responding to a human rights complaint filed against them may contact the Law Centre (http://www.thelawcentre.ca).

Dulce Cuenca was called to the Bar in the Philippines and British Columbia. She works in labour relations with the largest federal multi-professional labour union in Canada.

Any information contained in this column or any of its succeeding articles is not intended to be provided as legal advice for specific problems. If you need legal help, contact a lawyer about your specific issue. Information about the law in this column applies only to British Columbia, Canada. It is checked for legal accuracy at the time it is posted, but may become outdated as laws or policies change. The author and the editors and CanadianFilipino.ca do not assume any responsibility in any action the readers may take regarding the readers' specific personal matters.

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