In a recent decision, T.A. v Manitoba (Justice), 2019 MBHR 12 (CanLII), the Manitoba Human Rights Board of Adjudication (the “Board”) took a major step by ordering the Government of Manitoba to revise the criteria for changing sex designation to include recognition of non-binary sex designations on Manitoba birth certificates. This was the first adjudication in Manitoba on gender identity since its inclusion in the Manitoba Human Rights Code (the “Code”) in 2012.
A recent decision of the Manitoba Human Rights Commission¹ has clarified the extent of an employer’s obligation to provide its employees with a safe and respectful workplace. The decision – the first time the Human Rights Commission has considered a complaint of harassment on the basis of sexual orientation – is a powerful one, and is full of important takeaways for employers, employees, and workplace investigators alike.
In my previous life, before becoming an investigator, I lived in the world of private legal practice, both in the Caribbean and in Ontario, Canada. In that role, I had the opportunity of interacting with persons of diverse social, cultural and racial backgrounds, persons of varying personality types and persons with experiences that had shaped their life or the way they interacted with others. There were many occasions where the persons with whom I interacted, whether as their advocate or as opposing counsel, were seemingly not forthcoming with the information that I needed to illicit. The typical or traditional thinking is that they are not forthcoming because they are either lying or have something to hide.
The concept of a “microaggression” has received significant attention in recent years, and was explored more fully in a previous post. At its core, a microaggression is a subtle, often unintentional, behaviour that is rooted in stereotypes about marginalized groups. Despite the absence of ill will, microaggressions in the workplace can nonetheless amount to discrimination or harassment.
However, the challenge for investigators arises in determining whether a seemingly innocuous comment or action was motivated by a discriminatory stereotype or bias. When examining such allegations, investigators may wish to rely on the broader context and circumstantial evidence in arriving at their conclusions.