One of the most off-putting questions I have ever been asked is, “Do you consider yourself to be Black?” To say that I was flabbergasted would be an understatement. The irony is that the question was asked in the midst of the individual communicating to me how much they detest racism and microaggressions. In response, I inquired why they would ask such a question. They proceeded to say, “I don’t consider you to be Black. I consider you to be Brown.” My struggle in the moment was that I knew that the individual meant no harm.
Attitudes towards equality have evolved rapidly over the past few years, as have the standards by which we measure discrimination. As a result of these shifts, a question has emerged regarding whether the concept of “reverse discrimination” exists – that is, can individuals who have not been historically disadvantaged experience discrimination? This in turn begs the broader question – does discrimination occur anytime there is any difference in treatment?
Call it a job perk? As a workplace investigator, I not infrequently get questions from friends, family, people I’ve just met, about whether Situation XYZ may be an example of discrimination and/or harassment. A recent discussion about digital blackface led me to think of other possible examples of how anti-Black stereotypes and microaggressions can manifest in the modern workplace.
The breadth of human rights cases may make it seem daunting for investigators to delve into the legal principles relating to discrimination. However, as workplace investigators, it is incumbent upon us to be informed of these principles. We have summarized in this blog some legal principles that can help guide the investigation process and decision-making in discrimination cases (of course, these have to be considered in conjunction with whatever discrimination policy applies to an employer’s workplace).
Last week, my colleague Dana Campbell discussed the difference between racism and racial discrimination, and the ways in which racial discrimination can manifest in the workplace. In the spirit of her article and her quote from Clarence B. Warren – “Everything can be improved” – we review here three human rights cases where anti-black racism occurred in the workplace, what the law told us then, and considerations for how the application of some of these legal principles may evolve going forward.
We are living in a time when racism and racial discrimination are at the fore globally. The world is being awakened to an issue that is by no means new but has not necessarily received sufficient attention. There is now a global call for radical institutional and systemic changes which acknowledge the equality of racialized persons. While the focus is in many cases on the justice system, it is imperative that the systemic changes, if they are to be effective, must permeate to the core of every society at all levels, including the workplace.
Evidence of racial discrimination can be hard to come by. In Ontario, it is settled law that discrimination will more often be proven by circumstantial evidence and inference; the law has also accepted the principle that racial stereotyping will usually be the result of subtle unconscious beliefs, biases, and prejudices.
A recent decision from the Human Rights Tribunal of Ontario shows how an external review body may make such an inference based on flaws in an organization’s investigation.
Standards of appropriate workplace behaviour have rapidly changed over the last few years, and conduct that was once deemed acceptable is no longer tolerated in the workplace. But as the following arbitration decision demonstrates, one fundamental requirement still remains: the need to demonstrate a prima facie case of discrimination or harassment before the obligation to investigate a complaint is triggered.