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When we ask complainants in a workplace investigation whether there were any witnesses to the events that form the basis of their allegations, it is not uncommon to hear, “Well no, but I told my partner/best friend/colleague everything.” This is especially true in cases of sexual harassment or assault, where the events in question often take place in private, without witnesses present.
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.
Whether advocating for a client before the Human Rights Tribunal, drafting a Respect at Work Policy or assisting a client with engaging a workplace investigator, many lawyers are familiar with providing advice about harassment at work, but how many of us have thought about harassment in our own workplaces?
The Law Society of Ontario’s Discrimination and Harassment Counsel (“DHC”), an organization whose mandate includes providing services to people who have concerns or complaints about discrimination or harassment by lawyers and paralegals, shed light on this topic in its most recent report.
Examples of problematic workplace behaviours often include the obvious: a racial slur, a homophobic “joke” or inappropriate touching. But what happens when the behaviour in question is less overt? While seemingly innocuous, these types of comments can amount to what has been dubbed “microaggressions”. Named the ‘Top Word of 2015’ by the Global Language Monitor, this term has become increasingly popular in our common parlance. But what are microaggressions and why should employers (and other institutions) be concerned about them?
Sometimes, when I tell people that I conduct workplace investigations for a living, I am met with surprise. “There is a need for that?” they ask, often adding their view that harassment is a thing of the past. When I explain that it is not only harassment that is a problem in Canadian workplaces, but also violence, I am often met with complete disbelief.
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