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Serious insight for serious situations.

Serious insight for serious situations.

Part 1: Restoring the workplace before a harassment or discrimination investigation

Fortunately, or unfortunately, harassment and discrimination investigations have become quite prevalent in the workplace in recent years. Notwithstanding the legislative mandate, it is a positive indication when organizations are responding to complaints of harassment and discrimination within their workplace. However, in my experience as a workplace investigator, I often see quite clearly that, before an organization decides to pursue an investigation, there are multiple opportunities to address some of the issues by using less adversarial means.

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Maybe not that GIF: Digital blackface and other ways in which anti-Black racism may present in the workplace

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.

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What does anti-Black racism in the workplace look like: Consider these three cases

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.

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Think Respect at Work and Harassment Policies can be sidelined during the pandemic? Think again.

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.

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Sometimes a comment is just a comment: Making out a prima facie case of discrimination or harassment

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.

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#MeToo at two – Has anything changed?

A few weeks ago, I was part of a panel on TVO. The discussion centred on what had changed in the two years since the #Me Too Movement had begun. Much to my surprise, I seemed to be the sole voice on the panel who thought that the needle on the sexual harassment dial had moved at all.

At the risk of sounding like a Pollyanna, let me explain why I believe things have changed. I do so from the vantage point of someone who leads a large team of lawyers, lawyers who investigate complaints of sexual harassment across the country, in English and in French, and in every conceivable type of workplace.

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Starting an investigation when no one asked (or wanted) you to

You hear things.  A whisper here and there.  An overheard comment about a colleague crossing the line with another colleague.  Repeatedly.  Or maybe it’s more than a whisper.  Maybe it’s more of a resounding chorus.  And the voices are all offering alarmingly similar and compelling descriptions of a colleague engaging in a pattern of behaviour that – according to multiple reports – is decidedly unwelcome.  The information may even be set out in writing in a formal letter of complaint.  But the author of the letter has chosen to remain anonymous.

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Investigating the invisible: Examining subtle racial discrimination (Part 2)

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.

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