Last week, my colleague Dana Campbell discussed the difference between racism and racial discrimination, and the ways in which racial discrimination can manifest in the workplace. In the spirit of her article and her quote from Clarence B. Warren – “Everything can be improved” – we review here three human rights cases where anti-black racism occurred in the workplace, what the law told us then, and considerations for how the application of some of these legal principles may evolve going forward.
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.
Evidence of racial discrimination can be hard to come by. In Ontario, it is settled law that discrimination will more often be proven by circumstantial evidence and inference; the law has also accepted the principle that racial stereotyping will usually be the result of subtle unconscious beliefs, biases, and prejudices.
A recent decision from the Human Rights Tribunal of Ontario shows how an external review body may make such an inference based on flaws in an organization’s investigation.
The concept of a “microaggression” has received significant attention in recent years, and was explored more fully in a previous post. At its core, a microaggression is a subtle, often unintentional, behaviour that is rooted in stereotypes about marginalized groups. Despite the absence of ill will, microaggressions in the workplace can nonetheless amount to discrimination or harassment.
However, the challenge for investigators arises in determining whether a seemingly innocuous comment or action was motivated by a discriminatory stereotype or bias. When examining such allegations, investigators may wish to rely on the broader context and circumstantial evidence in arriving at their conclusions.