Like many of you, over the last couple of years, I have been hearing the buzz around the ban of the now controversial critical race theory (CRT) from some of our neighbours south of the border.
Sometimes, allegations of workplace misconduct will be clearly articulated and will be backed up by first-hand evidence of inappropriate behaviour or harassment, and employers will take the appropriate steps to conduct a fair and impartial investigation to determine whether such allegations are well founded.
We’ve been hearing much talk about the “Great Resignation” – specifically, between April and September 2021, more than 24 million American employees left their jobs, an all-time record. While the same hasn’t yet been seen in Canada, experts speculate that this may just be delayed…
In October 2021, my colleague Dana Campbell-Stevens wrote a blog in which she addressed how the law views an individual’s gut feeling about being a victim of discrimination. A recent case from the Saskatchewan Court of Appeal, Thomas v. Saskatchewan Indian Gaming Authority Inc., raises issues respecting the potential implications of an individual voicing such a gut feeling.
In human rights law, courts and tribunals will often find it useful to determine whether a claimant has established a prima facie case of discrimination. The test requires that the complainant has a protected characteristic under the relevant human rights legislation; that the complainant suffered disadvantage or adverse impact; and that the protected characteristic was a factor or had contributed to the disadvantage or adverse impact.
The nature of discrimination is such that it is often based on an individual’s “gut feeling” about an experience or interaction, rather than anything that is overtly said or done. The courts have recognized time and again that discrimination is often subtle and not overt.
When conducting a workplace investigation, particularly those involving allegations of discrimination, harassment, or reprisal, one issue that may arise is the relevance of the intentions of the respondent.
We are often asked to determine whether systemic issues exist in workplaces, focussing on issues like sexual misconduct, harassment, racism, and alcohol and substance use. Unlike investigations, systemic reviews don’t examine isolated error or fault. Systemic reviews don’t uncover misconduct or wrongdoing of a particular person, or flag potential civil or criminal liability. Systemic reviews are different. Designed to identify issues involving an institution’s systems, policies, and practices, they can also scrutinize group behaviours, norms, and actions – in ways that an investigation or a court proceeding can’t.