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What triggers a duty to investigate an allegation of discrimination?

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The first question employers need to ask themselves when a complaint is raised, is whether they need to investigate. The case of Gu v. Habitat for Humanity Greater Toronto Area Inc., 2018 ONSC 2725 (CanLII) helps to answer that question. It illustrates that a general allegation of discrimination without any details after an attempt has been made to obtain those details, does not trigger an employer’s duty to investigate.

Background

Shortly after four Habitat for Humanity chapters in the greater Toronto area merged into one organization called Habitat GTA, the Director of Finance and Administration for Habitat Toronto, Ms. Gu, was let go. Ms. Gu filed a claim for, among other things, damages arising from her termination, discrimination, and failure to investigate allegations of discrimination. This blog post focuses on the latter allegation.

Failure to Investigate Claim

Just over a month after Ms. Gu’s employment was terminated, she emailed the CEO of Habitat GTA alleging that she “was discriminated against at Habitat in the past weeks” and asked that Habitat GTA “open an independent investigation into this discrimination case immediately.”

The Senior Human Resources Director of Habitat GTA met with Ms. Gu to find out more information about her allegations. During that meeting Ms. Gu asked why it was not possible to have her job back. She did not provide any details of the alleged discrimination.

However, at the trial to assess Ms. Gu’s entitlement to damages for termination, discrimination and failure to investigate, Ms. Gu said that during the meeting with the HR director she had raised claims that her termination was discriminatory, albeit in an indirect way. She then provided contradictory evidence that she had not raised the discrimination allegation because she had been hoping to get her job back and it would be “too ugly” if she did come back to work after she had given such details. Ms. Gu stated that the reason she had asked for an independent investigation was so she could raise the discrimination issues with a third party, in a way that she couldn’t with former employer directly.

The Decision

The judge found that because Ms. Gu had not provided any particulars regarding the alleged discrimination, the employer did not have a duty to investigate. Further, Ms. Gu had alleged that she had been discriminated against “in the past weeks”, thus the employer’s only reasonable conclusion was that she was referring to the termination of her employment as discriminatory. As the Employer knew the termination was due to restructuring as well as gaps in Ms. Gu’s accounting skills and credentials required for the position (facts the court found were substantiated), and as two white males had been terminated at the same time, the Court found that the situation did “not give rise to any duty to investigate.”

At trial, Ms. Gu explained that when she said she had been discriminated against in the “past weeks,” she was referring to comments from 2009, and “in Mandarin, the reference to ‘past weeks’ would include a reference to more historic conduct.” Ms. Gu said that she did not specify to HR that her discrimination claim was based on incidents that had taken place in 2009 because she was uncomfortable raising such particulars directly with her former employer. The judge found that without further explanation the employer could not reasonably be expected to know what Ms. Gu meant by “past weeks”. The judge did not put much weight into Ms. Gu’s assertion about why she was uncomfortable providing that additional explanation, finding that “she was sufficiently comfortable to make the general allegation of discrimination in two emails.”

For all the reasons set out above, the judge found that there was no obligation on Habitat GTA to conduct an investigation based on the steps it had taken and the information it had.

Opposite Case

Contrast this case to the situation in which punitive damages were imposed on an employer for failing to investigate a minor complaint of workplace harassment: see RT blog post.

In that case, the employee had raised concerns to both her direct supervisor and the owner of the company immediately after she had allegedly been harassed by her colleague; however no steps appear to have been taken to look into her concern. While the employer told the employee they would “figure this out in the new year”, instead, they terminated her employment over the Christmas holidays.

In the Gu case, the employee’s position was terminated prior to her raising discrimination allegations. The employer still took the allegations seriously and met with Ms. Gu to attempt to obtain more particulars about the allegations. When no details were forthcoming, they correctly determined there was nothing further they could do.

                                                                            Key Takeaways

1. Always take steps to try to find out details of any discrimination or harassment allegations – in this case, upon receipt of Ms. Gu’s email alleging discrimination, and even though her employment had already been terminated, she was invited to meet with the Senior Human Resources Director of the organization and had an opportunity to explain the basis of her allegations.

2. There needs to be a reasonable informational basis upon which the duty to investigate arises – a bald allegation of discrimination on its own without any details, particularly after the employer has sought them out, does not trigger the duty to investigate.

3. Keep an open mind. There is a difference between bald allegations, which are allegations without any underlying detail, and allegations that you think are untrue. The first question to ask yourself is, if the allegations were true would they constitute a breach of the law or the organization’s policies. If the answer to that is “yes”, the allegations need to be investigated.