When I do respectful workplace training, one of the responses I often hear is, “Does this mean I can’t compliment my co-worker’s hair/clothes/eyes/jewelry?” My answer is always an annoyingly lawyerly one: “It depends.”
A comment that pertains to a colleague’s appearance has the potential to create a welcome personal connection. It can also cause harm. A set of recent decisions from the British Columbia Health Professions Review Board (the “Board”) provides some insight on when comments on a person’s appearance are inappropriate.
Overt racial discrimination, such as a racial slur or derogatory comment, can be easy to spot. However, the difficulty for investigators arises where an allegation of race-based discrimination seemingly does not relate to race at all. As discussed further in this post, such forms of discrimination (often dubbed “microaggressions”) are often manifested through subtle, unintentional behaviours that perpetuate stereotypes about marginalized groups.
The question then arises: how can allegations of subtle racial discrimination be investigated, let alone proven, where there is no obvious link to race? In the case study below, we outline considerations for investigators through the following scenario.
Lorsque j’étais membre du Tribunal des droits de la personne de l’Ontario, j’ai présidé à une audience qui se déroulait en anglais où une des parties désirait être identifiée par le pronom « they ». Et si l’audience s’était déroulée en français? Est-ce qu’il y a un terme correspondant? On le sait, la langue française n’est pas neutre; tout est forcément féminin ou masculin.
French is not a gender-neutral language, which presents added challenges when referring to individuals who identify as non-binary. There is no corresponding term to “they” in French. As noted by the Ontario Human Rights Commission, deliberately misusing pronouns can be a form of discrimination under the Human Rights Code.
At Rubin Thomlinson we deliver a lot of training on conducting workplace investigations and often the discussion turns to the costs of conducting an investigation, whether it be the monetary costs of an external investigation or the time costs of an internal investigation. These costs are typically balanced with the benefits of conducting an effective investigation, such as allowing employees to be heard, demonstrating a commitment to a respective workplace culture by “walking the talk” of policies, clarifying what actually occurred, and implementing targeted outcomes.