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.
As workplace investigators, it is important to be mindful of how you frame your questions when interviewing parties to an investigation. Framing is even more important when engaged in discussions about an individual’s identity (e.g., sexual orientation, race, nationality, religion, etc.).
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?
Racial discrimination can often be subtle and difficult to detect, particularly in fluid and dynamic situations such as those involving law enforcement. But as a recent Ontario Human Rights Tribunal decision indicates, police action that is ostensibly intended to maintain public safety can nonetheless amount to race-based discrimination.
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.
Racism is on the rise as a result of the global pandemic. Concerns about its prevalence prompted Marie-Claude Landry, Chief Commissioner for the Canadian Human Rights Commission (CHRC), to issue a statement earlier this month condemning the practice. Landry noted that minority groups, and in particular people of Asian origin, have been the victims of taunts, threats and intimidation in public and online. She went on to make clear that no one should feel threatened or unwelcome because of the colour of their skin or where they some from.
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.