Click here to purchase your copy of Human Resources Guide to Workplace Investigations, Second Edition, a must-have practical guide to workplace investigations written by leading employment and workplace investigations lawyers Janice Rubin and Christine Thomlinson.

Serious insight for serious situations.

Serious insight for serious situations.

<< Back to all posts

Investigating The Invisible: Examining Subtle Racial Discrimination (Part 2)

While you’re here, you may wish to attend one of our upcoming training courses:

Basic Workplace Investigation Techniques
17 Sep - 19 Sep at Courtyard by Marriott Calgary Airport
If a complaint of workplace harassment is made, do you know how to respond, investigate, and report on it — legally and correctly? If you don’t, you aren’t alone. This 3-day course is a crucial primer for today’s climate. Investigate mock complaints (inspired by our work across the country) from start to finish, build your investigation skills, and learn how to avoid costly pitfalls. The third day focuses on mastering report writing.
Event is fullRegistration closed

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.

In the following fact pattern, we examine an allegation of subtle racial discrimination and identify factors for investigators’ consideration.

Complaint

The complainant, a racialized woman, files a complaint against the respondent after the following exchange occurred, witnessed by a number of their colleagues:

Respondent: I’m surprised you’re interested in hockey!

Complainant: I bet the only reason you’re surprised is because of my race.

The complainant alleges that the respondent’s comment reflected a stereotype that racialized individuals are not interested in traditionally “Canadian” activities such as hockey. She believes that the respondent would not have made such a comment towards a white individual. The complainant further states that this incident represented an example of subtle racial discrimination (i.e., a “microaggression”).

The respondent is also a racialized woman. In her initial written response to the complaint, she acknowledges making the comment, but insists that it had nothing to do with the complainant’s race. She believes that the complainant was the one who made the conversation about race, not the respondent. The respondent further states that as a racialized woman, she could not have discriminated against another racialized individual.

Guiding Principles

In assessing this complaint, the following legal principles regarding racial discrimination ought to be considered:

1. The prohibited ground of discrimination does not need to be the sole or primary factor leading to the discriminatory conduct; it is sufficient for it to simply be a factor;
2. It is not necessary to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent’s actions on the complainant;
3. The prohibited ground does not need to be the cause of the respondent’s discriminatory conduct; it is sufficient for it to simply be a factor or operative element;
4. Direct evidence of discrimination is not required, as discrimination will more often be proven by circumstantial evidence and inference; and
5.Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.[1]

Investigating The Nuances

At first glance, the respondent’s comment does not appear to have any connection to race. Nonetheless, the above principles require an investigation into the root of the comment to determine whether it amounts to a race-based microaggression. Investigators may wish to obtain the following details:

Why was the respondent “surprised”? For example, had the complainant previously advised her that she did not like sports? Had they previously had discussions about hockey where the complainant appeared disinterested? Does the respondent find hockey boring and was simply surprised that anyone would find it interesting?

What was the relationship between the two parties? The two parties may have had a close relationship where the respondent was aware of the complainant’s interests and did not believe hockey to be one of them. In this situation, the likelihood of the comment being a racial stereotype may be lower. On the other hand, if the two had an arms-length relationship and did not know many details about one another, it may strengthen the position that the comment was based on a stereotype, rather than direct knowledge about the complainant.

Did the respondent’s demeanour indicate a derogatory undertone to her comment? For example, did the respondent roll her eyes or make her comment in a sarcastic, belittling tone?

However, investigators should be cautioned that a friendly demeanour on the part of the respondent does not necessarily mean that her comment did not carry a prejudicial undertone. This is particularly important in the context of microaggressions, which are often the result of unconscious biases.

Have there been similar incidents or comments made by the respondent towards the complainant? Assuming that your investigative mandate allows for this, consider whether similar comments have been made in the past. Establishing patterns of behaviour is an especially important exercise when investigating subtle forms of discrimination; incidents may appear innocuous in isolation, but reveal a broader issue when examined as part of a pattern.

Considerations to bear in mind

Be selective about witnesses. The exchange between the respondent and complainant was witnessed by a number of their colleagues. However, the respondent has acknowledged making the comment in question. Therefore, the issue to be investigated is whether this comment was racially motivated; witnesses are unlikely to be able to speak to this. Further, a witness’ subjective interpretation of the comment may not necessarily be an accurate one, and will likely be coloured by their own biases and worldviews. Investigators should consider whether the probative value of the witness evidence outweighs the need for confidentiality and timeliness in this investigation.

However, if the complainant relies on the respondent’s demeanour to support her allegation, witness evidence may be helpful in corroborating this point.

A racialized employee can nonetheless engage in racial discrimination. The Ontario Human Rights Tribunal has rejected the idea that it would be impossible or less likely for a racialized respondent to discriminate against another racialized individual.[2] The Ontario Human Rights Commission has further stated in their “Policy and guidelines on racism and racial discrimination”:

Some human rights claims allege racism by, among or within racialized groups. The consequences of these situations, for example loss of a job, are every bit as serious as racism perpetuated by White persons against racialized persons and they should be dealt with equally seriously.[3]

The complainant’s reaction does not excuse the conduct in question. The respondent states that the complainant was the one who made the conversation about race by saying, “I bet the only reason you’re surprised is because of my race”. However, the Tribunal has held that the reactions of a complainant/applicant to discriminatory conduct, even if inappropriate, did not excuse or negate the discriminatory conduct towards them.[4] The focus of this inquiry should therefore be on the respondent’s comment and underlying motivation.

Ill will or negative intent is not required to make a finding of discriminatory conduct. The respondent may genuinely believe that her comment was unrelated to the complainant’s race. However, as noted above, subtle racial discrimination can stem from an unconscious bias, of which the respondent may not be fully aware. The role of an investigator is to determine whether it is more likely than not that the comment was rooted in a stereotype about the complainant’s race, consciously or not.

Consider the implications of the behaviour. An investigator may ultimately find that the respondent’s comment was rooted in a stereotype about racialized individuals. The investigator may then need to consider whether this incident meets the threshold for a violation of the Human Rights Code and/or the organization’s internal workplace policies. It should be noted that the Code and the organization’s policies may have different thresholds for what constitutes discrimination and/or inappropriate workplace behaviour.

Conclusion

Allegations of subtle discrimination pose unique challenges for workplace investigators. In the absence of overt, direct evidence, investigators can consider the surrounding context for the behaviour in question. A nuanced examination into the circumstances may reveal that despite the best of intentions, a comment was not truly as innocent as was believed.

[1] Radek v Henderson Development (Canada) Ltd (No.3), 2005 BCHRT 302; Peel Law Association v Pieters, 2013 ONCA 396.

[2] Armstrong v Anna’s Hair & Spa, 2010 HRTO 1751 at para 88.

[3]http://www.ohrc.on.ca/sites/default/files/attachments/Policy_and_guidelines_on_racism_and_racial_discrimination.pdf.

[4] McDonald v CAA South Central Ontario, 2018 HRTO 163 at para 186.