'There wasn't even evidence to show that discrimination could be inferred'
The British Columbia Human Rights Tribunal has dismissed a worker’s complaint of discrimination on the basis of both race and physical disability. Ultimately, it came to down to the fact that the worker had no real proof of discrimination and the employer could show non-discriminatory reasons for the worker’s termination, says Jackie Laviolette, an employment and labour lawyer at Mathews Dinsdale in Calgary.
“With racial discrimination, it's very rare for it to be overt and blatant, but in this particular case there wasn't even evidence to show that discrimination could be inferred,” says Laviolette. “It's not a high bar, but in this particular case they didn't even make out what I would call a low threshold – recognizing that it's not usually overt in nature, there was just no evidence whatsoever to even step into the sphere of racial discrimination.”
The worker – who identified as Black – was employed with Community Living Alternative Services (CLAS), a Calgary-based social services organization. His job involved providing care to complex clients – people with development disabilities and mental health issues who were prone to violent behaviour – in the CLAS social services program.
In 2017, working conditions were difficult and employee morale was low but the worker liked his supervisor. However, CLAS terminated the supervisor’s employment in late 2017 for serious misconduct. The worker didn’t like the new supervisor, who was white.
Rumours of agenda against Black employees
Some of the complex clients told the worker that the supervisor had an agenda to replace Black workers with white workers and she had instructed clients to physically attack Black workers. There was one client in particular who was the main source for this information, although this client had severe mental health issues.
The new supervisor denied this allegation, pointing out that complex clients often displayed manipulative behaviour and CLAS workers were diverse.
When the new supervisor changed schedules from 12-hour shifts to eight-hour shifts, the worker believed it was because white workers preferred shorter shifts. However, the supervisor indicated that the schedule change came from high-level management in response to staffing shortages and operational needs.
The worker also felt that CLAS disciplined and terminated Black workers at a higher rate than white workers – particularly a colleague who was disciplined for a physical intervention with a client. The colleague said he did nothing wrong, but video footage showed there was cause for discipline. Another colleague claimed she was unjustly terminated after getting upset during a disciplinary meeting, but admitted that she raised her voice in front of the office while demanding to speak with HR.
CLAS presented evidence that 80 percent of its complex-needs workers were people of colour and the proportion of terminated employees matched that number.
The worker alleged that the new supervisor made racist comments, but the supervisor denied doing so.
Anonymous complaint of racism
In March 2018, CLAS received an anonymous email alleging a racist conspiracy between the supervisor and complex clients to fire and attack Black workers. CLAS removed the supervisor and encouraged the composer of the email to come forward with specific allegations so it could investigate. However, no one did and many issues raised in the email were addressed in a staff meeting.
CLAS acted appropriately by addressing the anonymous email complaint, says Laviolette.
“This employer did a good job of not just saying, ‘It's anonymous, we're not going to do anything with it’ – rather, they recognized their obligations to make sure that people felt safe at work,” she says. “The fact that they addressed it head on – not in a way that the [worker] wanted, but they addressed it head-on – acknowledged it, and tried to move the department forward from there, it was a real positive step for them.”
Also in March, the worker was involved in an incident where he didn’t use proper techniques in restraining a client, resulting in injuries to the worker that led to a workers’ compensation claim.
The worker was off work for five days before being cleared to perform modified work, but then he provided a medical note saying that he was unable to work until March 19. CLAS started to develop a modified return-to-work agreement but didn’t complete it. The worker was cleared for no restrictions on March 23 and he returned to work on the next business day.
Complaint against worker
In June, CLAS received an allegation that the worker abused a client. An investigation found it to be unsubstantiated, but CLAS was concerned that the worker hadn’t reviewed the client’s behavioural support plan. The worker refused to work with the client afterwards.
CLAS decided to terminate the worker’s employment based on the pattern of behaviour from the two incidents and the fact that, since the worker was refusing to work with one client, there were limited assignments for him. It terminated him without cause, providing him with severance pay.
The worker filed a human rights complaint alleging discrimination on the grounds of race and colour, both during his employment and in his termination. He also claimed that CLAS discriminated against him on the basis of physical disability by not presenting a modified return-to-work agreement when he was cleared for work with restrictions.
The tribunal found that the worker didn’t provide proof of his allegations that race was a factor in his treatment. It acknowledged that the work environment was difficult given the nature of the work and the staffing shortages, but race wasn’t a factor in any poisoned work environment.
Unreliable sources
The tribunal also found that the worker’s claim of an agenda to replace Black workers was based entirely hearsay from unreliable sources – clients with developmental and mental health issues who were known to be manipulative. The supervisor’s denial of the agenda was credible, as was the evidence that the schedule change came from upper management and was for legitimate operational reasons, said the tribunal.
The tribunal also accepted that there was sufficient evidence that the discipline and termination of the worker’s colleagues were for other reasons than race.
The tribunal noted that sometimes direct evidence of racism wasn’t always necessary, as the subtle nature of racism and discrimination could sometimes make it hard to meet the civil burden of proof. However, once again the worker was unable to show any indication of racist attitudes or specific examples of comments, the tribunal said.
The worker may have had protected grounds, but he fell short of meeting the three-part test for discrimination, says Laviolette.
“In this particular case, [the worker] was able to show that he had a protected ground, but there was no evidence establishing part two and three of the test – that there was any adverse effect because of the protected ground – it’s still on the complainant to do that,” she says.
As for the anonymous email, the tribunal found that CLAS responded to it appropriately by reaching out to employees and holding a staff meeting to address the issues.
Non-discriminatory termination
Regarding the worker’s termination, the tribunal noted that it was without cause and CLAS didn’t have to provide reasons to the worker. Although the worker assumed that race was a factor, there was evidence that CLAS had serious concerns stemming from the two incidents and a pattern of not following behavioural support plans for vulnerable clients. The tribunal accepted CLAS’ evidence of non-discriminatory reasons for termination and found that the worker had no evidence beyond ‘speculation or conjecture’ that race was a factor.
Finally, the tribunal noted that the period of time between the worker’s medical clearance to return to work with restrictions and his clearance to return to full duties – during which CLAS failed to finalize a modified return-to-work plan – amounted to only a few days. This was a reasonable amount of time, particularly since CLAS was dealing with staffing shortages, said the tribunal in finding no discrimination based on physical disability.
The tribunal dismissed the complaint on all counts.
A key part for employers in defending an unfounded complaint is documentation of everything and address any types of complaints that come up – such as the anonymous email CLAS received, says Laviolette.
“When you get those anonymous complaints, don't just dismiss them outright – have some due diligence and illustrate on what you decided to do with that complaint and why,” she says.
She also notes that it’s a difficult spot to be in for an employer.
“It can be so hard in allegations like this to defend against [by proving they didn’t do something] in some ways – my heart goes out to the employer that it made it all the way to the tribunal essentially without any evidence on the part of the complainant,” says Laviolette. “I'm sure the employer was frustrated in having to go all the way to tribunal to defend itself, it’s very challenging and expensive.”
However, she adds that it’s key to not let that frustration show through and maintain the high ground if the complaint doesn’t have merit.
“My advice to employers is always appear to be the more reasonable one in these situations – it usually comes down to who's acting more reasonably,” she says.
See Kumbah v. Community Living Alternative Services Ltd., 2022 AHRC 91.
