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?
Depuis la mi-mars 2020, la majorité de nos enquêtes en milieu de travail et au sein des institutions postsecondaires se font de façon virtuelle. Donnant suite aux consignes de la santé publique concernant la distanciation sociale, nous rencontrons rarement les parties et témoins d’une enquête en personne, plutôt nous les rencontrons par vidéoconférence. Cette méthode de communication a certaines retombées du point de vue de la langue. Notamment, toute difficulté de compréhension est accrue par voie virtuelle. Il y a toutefois moyen d’atténuer ces difficultés. De plus, les contraintes géographiques disparaissent avec les enquêtes virtuelles.
As a reviewer of workplace investigation reports, I try to encourage the use of plain language. By this, I mean that I try to make sure that a report can be easily understood by the people who read it. I admit that this is not always easy. I am a lawyer, after all, which means that I was trained to make everything sound more complicated than it really is.
On January 1, 2021, new regulations will come into force that will amend the Canada Labour Code (Code) and change how harassment and violence investigations are to be conducted in federally-regulated workplaces. Among the changes are the provisions surrounding the selection of a workplace investigator. Under the new regulations, an employer can appoint an investigator from a list of investigators that the employer has jointly developed with its health and safety representative, workplace committee, or policy committee.
In our workplace investigation training sessions, we often talk about the four pillars of the investigation process: fairness, thoroughness, timeliness, and confidentiality. The recent decision of the Human Rights Tribunal of Ontario (the “Tribunal”), Young v. O-I Canada Corp., is an example of an investigation under scrutiny due to its lack of thoroughness.
In my role as review counsel, I train others on how to write effective workplace investigation reports. When I review reports, much of what I focus on is readability: how is the report going to sound to the reader? Is it easy to read? Is the reader going to get confused by the report’s organization? I think about this mythical reader a lot; probably too much in fact, and I bet my colleagues are tired of hearing me go on about it.
I have seen some policies that set out a specific hierarchy for reporting a complaint. The order sometimes starts off with addressing the matter directly with the person engaging in the unwelcome behaviour, followed by reporting it to a supervisor, that supervisor’s manager, Human Resources, and in cases where Human Resources is engaged in the alleged wrongdoing, a member of the executive team and/or an independent organization.
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.