While you’re here, you may wish to attend one of our upcoming workshops:
Basic Workplace Investigation Techniques
While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
Interviewing witnesses can be the toughest part of an investigation, and sometimes our whole case hangs on the information that we may obtain from them. In this workshop, we help to shed light on the challenges we face when interviewing witnesses and provide strategies for dealing with them.
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? Consider the following examples:
- You’re so well-spoken!
- I’m surprised you’re interested in hockey.
- Your name’s quite a mouthful; is there a nickname I can use instead?
- I wouldn’t have expected you to be so outspoken.
- Where are you really from?
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?
In 2017, Merriam-Webster officially added “microaggression” to its dictionary, defining it as: “a comment or action that subtly and often unconsciously or unintentionally expresses a prejudiced attitude toward a member of a marginalized group (such as a racial minority)”.
This definition is comprised of three key elements:
- The behaviour in question is inherently subtle;
- There is often an absence of ill will; and
- The behaviour has the effect of expressing negative attitudes about a marginalized group.
In our search, we were unable to find cases to date that specifically analyzed the concept of a microaggression. However, it has been established that subtle, microaggressive-type behaviour can constitute a breach of the Human Rights Code. In one case, the following workplace incidents were deemed to be racial harassment under the Code:
- Saying “you people are so sensitive” to a racialized co-worker who took issue with a soccer coach being described as “very Jamaican”
- Commenting that a racialized individual’s name was “not Canadian”
- Commenting that Christmas is a Canadian holiday, and that “immigrants” should not require others to say “happy holidays”. 
Other examples of subtle race-based discrimination and harassment under the Code have included:
- Asking a black co-worker “Aren’t all black people afraid of dogs?” and commenting that he “fit every stereotype” while he ate fried chicken; and
- Requesting three black legal professionals to produce their identification while they were in a courthouse lawyer’s lounge.
In short, while “microaggression” as a stand-alone term is new, the concept it represents is not: subtle behaviours can amount to discrimination or harassment.
Why should employers care?
These cases demonstrate that an outwardly innocent comment or action can carry a negative undertone about a protected Human Rights Code ground. Where subtle workplace behaviours may contravene the Code, the employer’s duty to address potentially discriminatory conduct becomes triggered.
Whether the conduct is defined as a microaggression or not, employers should be responsive to these types of subtle behaviours. Left unchecked, they can perpetuate stereotypes and lead to a divisive and toxic work environment. Further, what may initially manifest as a less overt behaviour can escalate to more serious workplace misconduct. Repeated microaggressions may also indicate larger systemic issues and attitudes within the organization that warrant further examination.
“But I didn’t mean anything by it”
One challenge in dealing with this type of behaviour is that it may not stem from a fully realized discriminatory intent. Consider someone who has made a joke that has a racial stereotype embedded in it. The person’s intent made have just been to be funny. Nevertheless, from a legal standpoint, the absence of malice or intent will not excuse behaviour that has the effect of being discriminatory. Microaggressions are subtle by their very nature and often unintentional; however, a comment that appears on its face to be a joke can nonetheless be rooted in prejudice. The impact on the recipient can also be significant; microaggressions can perpetuate stereotypes about marginalized groups, leave an individual feeling insulted, singled out or imply that they “don’t belong”.
In examining whether a comment amounts to a microaggression, employers should consider the underlying message behind the behaviour, rather than the intention.
For example, complimenting a racialized colleague for being articulate may imply that they were not expected to be articulate. A dismissive attitude towards the proper pronunciation of someone’s name can send the message that a “non-traditional” name is not worth learning. Expressing surprise at a colleague’s assertiveness may imply that due to their gender and/or race, they were expected to be more mild-mannered.
How can employers navigate the murky waters of microaggressions?
The subtlety of microaggressive behaviour poses a unique challenge in the employment context. Nevertheless, it is important for employers to recognize and address the behaviour for what it is. Here are some of our suggestions:
Lay the groundwork
The employer should make it clear that both subtle and overt forms of harassment and discrimination are unacceptable in the workplace. Using microaggressive examples in a policy or training materials may assist in laying the groundwork, as this behaviour may not always seem problematic to employees.
Be Open Minded
When reviewing complaints of discrimination and harassment that are based on subtle behaviours, keep an open mind. Consider the following:
- What was the context leading up to the comment or action?
- Is it likely that the same comment or action would have been made towards a member of a non-marginalized group?
- Is there an alternative explanation for the behaviour? All things considered, is the explanation credible in the circumstances?
- Is there a particular stereotype associated with the comment or action?
In considering these factors, keep in mind that the prohibited ground does not need to be the sole or primary factor in order for the behaviour to be discriminatory.
Discussions around microaggressions have gained significant traction in recent years. Employers can expect a parallel increase in complaints regarding more subtle forms of workplace misconduct under the Human Rights Code. Accordingly, they will need to be adept at dealing with them.
 McDonald v CAA South Central Ontario, 2018 HRTO 163.
 Gordon v Best Buy Canada Inc., 2018 HRTO 1816.
 Pieters v Peel Law Association, 2010 HRTO 2411.
 The protected grounds under the Ontario Human Rights Code are: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity/expression, age, record of offences, marital status, family status and disability.
 Ontario (Human Rights Commission) and O’Malley v Simpson-Sears Ltd.,  2 SCR 536.
 Peel Law Association v Pieters, 2013 ONCA 396 at paras 111-114.