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.
Last week, my colleague Dana Campbell discussed the difference between racism and racial discrimination, and the ways in which racial discrimination can manifest in the workplace. In the spirit of her article and her quote from Clarence B. Warren – “Everything can be improved” – we review here three human rights cases where anti-black racism occurred in the workplace, what the law told us then, and considerations for how the application of some of these legal principles may evolve going forward.
A pivotal case in Ontario human rights case law on anti-black racism is the decision of Peel Law Association v. Pieters.¹ Two Black lawyers and one Black articling student were approached by the librarian while sitting in the lawyer’s lounge at the Brampton courthouse and asked for their identification. The lounge had a policy that only lawyers and articling students were allowed using the lounge and the librarian had primary responsibility for enforcing the policy. The Vice-Chair of the Human Rights Tribunal found that the librarian approached the Black lawyers in an aggressive and demanding manner, and that she did not ask to see the identification of anyone else in the lounge. Applying the legal test for establishing a case of discrimination under the Ontario Human Rights Code (“Code”), the Vice-Chair found that there were sufficient facts to support a prima facie case of discrimination, and that no credible explanation was provided for why the librarian stopped and questioned the lawyers as she did. The Vice-Chair drew the inference that her conduct was, in some measure, based on their race and colour.
The Tribunal decision was reversed by the Divisional Court and then reinstated by the Ontario Court of Appeal. In its decision, the Court of Appeal rejected the Divisional Court’s statement that the legal test for discrimination required a “nexus” or “causal connection” between the adverse treatment and the ground of discrimination, holding that the ground of discrimination must only be a factor in the adverse treatment. Importantly, the Court of Appeal also recognized that proving a prohibited ground like race was a factor in someone’s treatment is difficult, and that as such, it will often be proven by circumstantial evidence and inference. The Court of Appeal also accepted as “sociological fact” that racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices. The Pieters decision remains good law to this day and, along with Shaw v. Phipps,² is often cited for its articulation of the test to determine racial discrimination under the Code.
Two more recent HRTO decisions – Gordon v. Best Buy Canada³ and McDonald v. CAA South Ontario4 – considered allegations of racial harassment and the creation of a poisoned work environment. In Gordon, the applicant was subjected to multiple race-related comments by co-workers, including a supervisor asking him, “Aren’t all Black people afraid of dogs?” When approached by the applicant about the comment, the supervisor made further racially inappropriate comments, explaining to the applicant that he had Black friends and that he thought the fear of dogs was rooted in slavery. The same supervisor made derogatory comments in Somali to a female employee of Somali descent which the applicant witnessed. A second employee told the applicant, “Wow you really do fit the stereotype,” when the applicant was eating fried chicken.
In McDonald, the applicant’s co-worker told the applicant “you people are so sensitive” when the applicant questioned the co-worker’s description of her son’s soccer coach as being “very Jamaican”; commented that the applicant’s name was “not Canadian”; made a comment about Christmas being a Canadian holiday and how she did not agree with immigrants coming to Canada and making people say “happy holidays”; and made a comment that Muslims should return to their countries.
In both cases, the Tribunal held that the comments amounted to racial harassment and that the employer had failed to adequately respond to the applicant’s complaints about the harassment. In Gordon, among other things, the employer failed to interview the applicant about his concerns; failed to document their conversation with the supervisor about the complaints; and promoted the supervisor shortly after the applicant made his complaint. In MacDonald, the employer failed to properly investigate some of the applicant’s main allegations; prejudged certain issues the applicant complained about; failed to allow the complainant to respond to accusations being made against her by her co-workers during the investigation; and demonstrated a fundamental lack of understanding on the law on racial harassment by concluding that intention was necessary for a finding of harassment and by relying on the fact that the applicant challenged the race-related comments as a reason for finding that the comments did not amount to harassment.
The applicant in Gordon also alleged that he was bullied and harassed by two other managers, and that these two managers had a problem with other individuals who were also racialized. The adjudicator stated that the applicant had failed to provide any evidence to suggest that his race was a factor in the allegations of bullying and harassment. As our conversations surrounding race and racism start to deepen and we better appreciate the very subtle ways in which anti-black racism can manifest itself, it will be interesting to consider who holds the responsibility for “naming” racial harassment, and the point at which ignoring race as a decision-maker – even where it has not been alleged as a ground of discrimination or where supporting evidence has not been provided – can become problematic.
In both MacDonald and Gordon, the adjudicators did not find that the conduct at issue rose to the level of a poisoned work environment despite there being evidence of at least one other employee in the workplace making race-related comments (in Gordon, it was the fried chicken comment; in MacDonald, an employee made a comment about being nervous about seeing a new security guard who wore a turban when she was working after hours.) According to the adjudicator in Gordon, “I am not satisfied that [the comments made by the supervisor] were so egregious or persistent to create a poisoned work environment.” In MacDonald, the adjudicator similarly stated that the behaviour, though harassing in nature, “did not rise to the level of creating a poisoned work environment.” We query whether in today’s climate, the behaviours at issue would have met the threshold of a poisoned work environment, and whether our tribunals and courts will adapt and evolve their application of that threshold.
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1 2010 HRTO 2411, reversed by the Divisional Ct, reinstated by Court of Appeal at 2013 ONCA 396.
² 2012 ONCA 155.
³ 2018 HRTO 1816.
4 2018 HRTO 163.