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.

Complaint:

The complainant, who is a racialized male, alleges that his manager, the respondent, has failed to promote him because of his race. The complainant states that while he has had some performance issues, his white colleagues have had similar performance issues and nonetheless received promotions. The complainant believes that his race has led him to be scrutinized more closely and be stereotyped as lazy and less deserving of a promotion. He acknowledges that he has no definitive evidence that his race has played a role in not receiving a promotion.

In the respondent’s initial written reply to the complaint, he states that the complainant failed to be promoted solely due to his various performance issues. The respondent has provided detailed explanations of the performance issues in question, as well as a copy of the complainant’s performance plan, which confirms many years of performance issues.

The Bigger Picture: What Needs To Be Investigated?

Subtle forms of discrimination often cannot be detected in isolation. In this scenario, the complainant does not take issue with the simple fact that he was not promoted. Rather, the basis for his complaint is that his colleagues have had similar performance issues and nonetheless received promotions.

Accordingly, the investigation ought to centre around the following broader issues:

• Was there differential treatment in failing to promote the complainant (specifically, did his performance issues receive more scrutiny than those of his colleagues?); and if so,
• Was race a factor in this differential treatment, either in whole or in part?

Caution to investigators

For the following reasons, investigators should be cautious of examining the complainant’s performance issues in isolation.

First, the complainant has acknowledged his performance issues; it would therefore be an inefficient use of time and resources for an investigator to follow up on matters that have already been conceded to.

Second, a narrow focus on the complainant’s performance may call into question the adequacy of the investigation. The Human Rights Tribunal has found an investigation to be “unreasonable” where it did not address the complainant’s key allegations.[1] As noted above, this complaint is not simply about the complainant’s failure to be promoted. An exclusive focus on the complainant’s work performance will therefore not address his key concern about differential treatment based on race.

Lastly, an over-emphasis on the complainant’s performance may lead to the inference that the complainant, rather than the respondent, is under investigation. While the complainant is responsible for supporting his allegations, the focus of the inquiry should be on the fairness of the respondent’s actions.

Getting The Full Story: What Information Do You Need?

The complainant alleges that he has been subjected to differential treatment based on his race, but acknowledges that he does not have direct evidence to support this. By necessity, this investigation will rely on contextual evidence to compare the treatment of the complainant with that of his colleagues who have received promotions.

The investigator may wish to obtain the following details:

• Can the complainant provide specific examples of his colleagues being promoted, despite having the same performance issues as him?
  • If so, are there any reasons offered for this discrepancy? (ie, did those other individuals have more seniority, more relevant job experience, etc)
• Was any feedback or support offered to the complainant to assist him in improving his work performance? Was feedback/support offered to other employees?
• Did the complainant and/or the other employees in question exhibit signs of improvement in their work performance?
• Can the complainant provide specific examples of positions to which he feels he should have been promoted?
  • If so, the investigator may wish to obtain information about the credentials of the complainant and that of the successful candidates for those positions. The investigator may also wish to review documents from any related job competitions, including interviewer notes and selection criteria.
• How are decisions about promotions generally made at this organization? (ie, through a formal competition, informally, etc)

It should also be noted that while the complainant’s performance plan should not be relied on in isolation, it can nonetheless assist in determining credibility. For example, are the parties candid about the complainant’s performance issues? Are the performance issues overstated or minimized by either party?

Connecting the Dots: Assessing Whether Race Was a Factor

Race-based discrimination can often be subtle, indirect and unintentional; for investigators, this means that direct evidence will rarely be presented. However, as discussed in a previous post, circumstantial evidence can greatly guide investigators in determining whether racial discrimination was a factor. Investigators should consider the following:

1. Is there sufficient evidence to indicate differential treatment towards the complainant?
2. What is the respondent’s explanation for this differential treatment?
3. Based on the available information, is the respondent’s explanation more probable than an inference of racial discrimination?[2]

While there may have been differential treatment, it will not necessarily be discriminatory if there is persuasive evidence to the contrary. For example, the complainant’s performance issues may have been more severe or of a more ongoing nature than that of his colleagues, or his colleagues may have had more relevant expertise.

On the other hand, if the respondent cannot offer a credible explanation for the differential treatment, it may be an indicator that race played a role.

• In the following cases, racial discrimination was found to have occurred, despite the absence of direct evidence:The applicant, an Indigenous woman, conducted a training session with her colleague, a white male. Despite both presenters receiving negative reviews from the participants, the applicant’s contract was terminated, while her colleague received coaching to improve his performance. The Tribunal noted that the respondent was unable to provide a credible explanation for the differential treatment, and found that the applicant had received a disproportionate amount of blame and scrutiny for the negative feedback. This heightened scrutiny further led the respondent to undertake more punitive action towards the applicant. The Tribunal therefore held that the respondent’s actions amounted to differential treatment based on race.[3]

• Following an argument between the applicant (a black male), and his supervisor, the respondent employer required the applicant to attend anger management counselling as a condition of his continued employment. The respondent stated that this measure was intended to prevent a violent incident from occurring in the workplace. The Tribunal found that although the applicant was visibly angry during the incident in question, his behaviour did not indicate a propensity towards violence, nor did he have a history of such. The Tribunal also noted that employees at this organization were rarely required to attend anger management counselling. On the balance of probabilities, the Tribunal held that the respondent employer was influenced by the stereotype that black men had a propensity for violence, and had subjected the applicant to a higher degree of scrutiny by requiring him to attend anger management counselling. In doing so, the respondent discriminated against the applicant due to his race.[4]

• The personal respondent requested identification from three black legal professionals in the lawyer’s lounge. In the absence of a rational explanation for this request, the Tribunal held that her actions were motivated by the race of the applicants.[5] Of note, the Tribunal stated:

“The lack of a persuasive non-discriminatory reason for the questioning of the applicants provided either at the time of the incident or at the hearing leads me to conclude that the personal respondent’s decision to question the applicants was indeed tainted by considerations of their race and colour.”[6]

Conclusion

Investigating subtle forms of racial discrimination will nearly always rely on circumstantial evidence and the broader context. In the absence of a credible, probable explanation for the behaviour in question, investigators should be prepared to make an inference that racial discrimination has occurred.

[1] McDonald v CAA South Central Ontario, 2018 HRTO 163 at paras 181, 182.

[2] Couchie v Ontario (Municipal Affairs and Housing), 2011 HRTO 689.

[3] Ibid.

[4] Adams v Knoll North America, 2009 HRTO 1381; application for judicial review dismissed: Knoll North America Corp. v Adams, 2010 ONSC 3005.

[5] Pieters v Peel Law Association, 2010 HRTO 2411

[6] Ibid, at para 90.