Like many of you, over the last couple of years, I have been hearing the buzz around the ban of the now controversial critical race theory (CRT) from some of our neighbours south of the border.

For those of who you may not know what CRT is and who may not have heard about the hype surrounding it all, let me briefly explain. CRT generally refers to the idea that racism or racial bias is fundamentally embedded in institutions, legal systems, and policies. Why is this a problem for those individuals south of the border? That is a different topic for another day. However, from my perspective, especially from someone who cares so deeply about combating racism and racist institutions, CRT is critical tool in combating institutional and systemic racism.

As I was doing my research in preparation for this blog, I came across an interesting quote by an early founder of CRT, Professor Mari Matsuda. When she was asked to describe CRT, she stated, “For me, critical race theory is a method that takes the lived experience of racism seriously, using history and social reality to explain how racism operates in American law and culture, toward the end of eliminating the harmful effects of racism and bringing about a just and healthy world for all.”¹

After reading this quote, it dawned on me that CRT is a helpful tool in assisting workplace investigators to conduct race-based discrimination investigations. Specifically, CRT can assist investigators in understanding the complex dynamics between race and workplaces/institutions. As a workplace investigator who is passionate about helping clients tackle race-based discrimination in their workplaces, I find this framework extremely helpful.

For some folks who may not be convinced, I recently found a great example of a human rights decision from Alberta supporting my opinion about using CRT in race-based discrimination cases.  In Ledger v. Alberta Health Services and Alberta Justice and Solicitor General, 2021 AHRC 95 (“Ledger”), the Human Rights Tribunal of Alberta (“the Tribunal”) decided that an Indigenous woman’s case was dismissed too soon and should have instead gone to a full hearing.

Facts of the Case

The complainant, who is an Indigenous woman, worked as a Registered Nurse at a provincial correctional facility. She attended a demonstration protesting systemic racism and bias towards Indigenous peoples in the Canadian justice system. During this protest the complainant held a sign that said, “White People Scare Me.” Days later, a fellow nurse circulated a picture of her with the sign to others in the workplace.  The complainant was subsequently subjected to threats and abuse by other employees at the facility. She was removed from her position and placed on temporary administrative leave. She was later offered alternate work that her employer determined would be appropriate to ensure her safety.

The complainant filed a human rights complaint of discrimination on the basis of race against her employer under the Alberta Human Rights Act, but her complaint was dismissed by the Director of the Commission (“the Director”). The Director found that her employer responded appropriately and that there was no evidence of discrimination on the basis of race.

The complainant filed a request for review, asking that the Tribunal review the Director’s decision and decide if the complaint should have been dismissed or referred to the Tribunal for a hearing. During the review, one of the arguments from the respondent was that race did not play a role in its decision to move the complainant, or in the threats that the complainant was subjected to at work. On that point, the Chief of the Commission and Tribunals (“the Chief Commissioner”) said:

I need not decide whether an Indigenous woman who is called a racist, and subjected to threats and abuse by white colleagues in her workplace, on the basis that she was seen protesting historic bias and racism against Indigenous people, itself constitutes workplace racial harassment. For the purposes of this review, it is sufficient to observe that the respondent [Justice and Solicitor General’s] position is flawed in a fundamental respect. When assessing whether there is connection between a prohibited ground of discrimination and adverse treatment, context must be considered. It is well established that discrimination, particularly racial discrimination, is rarely practiced overtly. It will most often be proven through circumstantial evidence and inference.²

The Chief Commissioner also found that there was information upon which the Tribunal could find a nexus between race and the threats and harassment experienced by the complainant. For example, the Chief Commissioner highlighted that the complainant is an Indigenous woman, who attended a rally protesting racism and bias against Indigenous people in the Canadian justice system. Specifically, the protest involved a high-profile case which had prompted an emotionally charged debate between Indigenous and non-Indigenous peoples.

Keeping in mind the racial identity of the complainant, the Chief Commissioner also took into consideration the broader context of the events at issue. Specifically, the Chief Commissioner stated:

Finally, and in addition to the above, the analysis advanced by both the Director and the respondents fail to appreciate the very real temporal and societal context within which the events took place. It must be emphasized that the proper analysis must consider the entire context, as well as being alive to what Greckol J. noted, that human rights legislation must be “…adapted not only to changing social conditions but also to evolving concepts of human rights.” Here, there is no dispute that what prompted the threats and abuse towards the complainant, and her removal from the workplace, was her challenge to historic racism and systemic discrimination against Indigenous people, and that as an Indigenous woman, she is fearful of the on-going effects of that legacy. Confronting this harmful stain on Canadian history, through protests and calls for reconciliation are part of our current changing social condition. Surely, concepts of human rights are able to evolve to further that collective commitment.³

In the quote above, not only did the Commissioner consider the complainant’s racial identity, but the Commissioner also considered the ongoing historical, social and political racism faced by Indigenous communities.  As a result, the Chief Commissioner overturned the Director’s decision to dismiss the complaint and referred the matter on for a hearing.

Key Takeaways: 

Before folks run away from CRT or are wary about using this framework during an investigation, take a moment to reflect on the commentary in Ledger. The Chief Commissioner was able to refrain from using an overly simplistic approach to discrimination when he reviewed the facts at hand. What I believe the Chief Commissioner realized was that, in order to carefully analyze the facts and the potential merits of the case, he had to put on a CRT lens. That is, he looked at the facts of the case from a CRT perspective. Ultimately, this allowed the Chief Commissioner to give the facts before him a broader, more meaningful, and purposeful interpretation.

From my experience as a workplace investigator, and as someone who identifies as a Black woman, I often find that there is an overly simplistic approach applied to race-based discrimination investigations. In other words, sometimes workplace investigators focus solely on applying the Moore⁴ or Pieters⁵ principles of discrimination analyses, rather than actively taking a deeper dive into the issue at hand. I want to challenge folks in general, and workplace investigators specifically, to conduct that deeper analysis when dealing with race-based discrimination cases. This may mean that as workplace investigators, we sometimes have to nudge ourselves to go the extra mile and look at the historical, cultural, and societal contexts when looking at the facts, while staying inside our mandate.

So, this is a friendly reminder to all workplace investigators — don’t forget to wear your lens!

¹ Rachel Hatzipanagos, “What the founders of critical race theory have to say about the conservative attacks,” The Washington Post  (July 22, 2021), online: https://www.washingtonpost.com/nation/2021/07/22/critical-race-theory-founders/

² Ledger, at para.58.

³ Ibid at para.61.

⁴ Moore v. British Columbia (Education), [2012] 3 SCR 360.

⁵ Peel Law Association v. Pieters, 2013 ONCA 396.

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