While you’re here, you may wish to attend one of our upcoming workshops:
Investigating Complex Cases
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
The breadth of human rights cases may make it seem daunting for investigators to delve into the legal principles relating to discrimination. However, as workplace investigators, it is incumbent upon us to be informed of these principles. We have summarized in this blog some legal principles that can help guide the investigation process and decision-making in discrimination cases (of course, these have to be considered in conjunction with whatever discrimination policy applies to an employer’s workplace).
These principles build upon the guidelines that our colleague, Melody Jahanzadeh, summarized in her excellent blog on investigating subtle discrimination in the workplace. For a case that touches upon the principles explained below, we suggest consulting Peel Law Association vs. Pieters, 2013 ONCA 396.
- Burden and standard of proof
The burden of proof refers to who bears the responsibility of proving the case. The standard of proof refers to how much evidence must be put forward by the party who bears the onus of proving the case. In discrimination investigations, the complainant bears the onus of proving their case. The standard they have to meet is the balance of probabilities. In simpler terms, this means that an investigator has to determine whether the complainant put forward enough evidence to show that it is more likely than not that the respondent’s actions were discriminatory.
For context, the standard of proof in discrimination cases is lower than in criminal cases, where the Crown bears the onus of proving beyond a reasonable doubt that the accused committed a crime.
- The test for discrimination
To make a finding of discrimination, the investigator must be satisfied of the following:
(1) The complainant has a characteristic protected by human rights legislation (e.g. race);
(2) The complainant was subjected to adverse treatment (e.g. being denied a promotion); and
(3) The protected characteristic was a factor in the adverse treatment (e.g. race was a factor in denying the complainant the promotion).
A respondent’s intent does not factor into the test for discrimination. While a respondent may be genuine in stating that they did not intend to discriminate, it is important for investigators not to be swayed by this. Simply, intent is not a relevant consideration in determining whether a respondent’s actions were discriminatory.
Typically, discrimination cases will hinge on the third branch of the test. There are two principles relating to this branch that investigators should know. First, the complainant need not show that the protected characteristic was the only reason for the adverse treatment. It is sufficient for the complainant to establish that the protected characteristic was connected to, or a factor in, the adverse treatment.
Second, where direct evidence is not available, an investigator may rely on circumstantial evidence or inferences to find that the conduct at issue was discriminatory. Courts and human rights tribunals have recognized that discrimination is often subtle rather than overt, such that direct evidence may not be available to the complainant to prove their case. If such direct evidence is not available, it is important for the investigator to consider all of the evidence in the case to determine whether an inference can be drawn.
Consider a case where a complainant alleges that a hiring manager did not award him a position because of the complainant’s race. It is highly unlikely that the respondent told the complainant or anyone else that race was a factor in the decision (this would be considered direct evidence). There may be circumstantial evidence, however, that could be relied upon by the investigator to make a finding of discrimination, provided that such evidence is credible. For example, there could be evidence that the respondent has never hired a racialized person or that the respondent hired someone less qualified than the complainant for the position.
For investigators, it is important to ask the right questions to determine whether such circumstantial evidence exists. Returning to the example above, an investigator could ask for the application packages of those involved in the job competition and ask questions about the competition process.
- The question of the shifting evidential burden
In discrimination cases, the Ontario Human Rights Tribunal will often state that the complainant (referred to as the “applicant”) has to establish a prima facie case of discrimination. This means that the applicant has to put forward enough evidence which, if believed, would support a finding of discrimination. Once the applicant does this, it is up to the respondent to provide a credible non-discriminatory explanation for the alleged adverse treatment or risk losing the case. In the Pieters case, the Ontario Court of Appeal identified this as a shift in the “evidential burden.” In that case, the Court explained that if the respondent calls evidence to provide an explanation for the alleged adverse treatment, the burden of proof remains on the applicant to establish that the respondent’s evidence is “false or a pretext.”
As investigators, I do not think that we need to be too concerned about the mechanics of this shifting evidential burden. What is important is that the respondent, in the interest of fairness, be given the opportunity to explain why the alleged actions were not discriminatory. If such an explanation is provided, the investigator must seek to obtain evidence to test the strength of the respondent’s explanation; the explanation should not be accepted at face value if evidence is available to corroborate it. It is also important that the investigator give the complainant an opportunity to comment on the respondent’s explanation (provided that the explanation is something that is within the complainant’s knowledge).
An example is helpful here. A female complainant alleges that her male supervisor always takes the male members of the team out for drinks in the evenings. In response, the supervisor says that he did have drinks with the male members of the team, but that this happened only once on a day that the complainant was away. He also says that the other female team member declined the invitation. In such a situation, the investigator should seek corroborative evidence about the invitation to the other female team member (for example, an email in which the invitation was extended) and reply evidence from the complainant about whether she was away on the day in question. The investigator could also seek evidence from the male members of the team about the number of occasions on which they went out with their supervisor.
At the end of the day, regardless of the shift in the evidential burden explained above, the investigator must still be satisfied on a balance of probabilities that there is sufficient credible evidence (either direct or circumstantial) to make a finding of discrimination. In making this finding, the investigator must look at the entire context of the case, including any explanation (or lack thereof) given by a respondent.
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