'It sends a message to employers that they should read investigation reports critically,' says lawyer offering tips for HR
“Employers should take all potentially discriminatory comments or conduct in the workplace seriously, not just because of the concern for vicarious liability, but also because discriminatory comments and conduct can create a poisonous work environment detrimental to both employees and the employer’s operations.”
So says Rich Appiah, an employment lawyer and principal of Appiah Law in Toronto, after the Ontario Human Rights Tribunal ordered an employer to pay a worker $20,000 for relying on a dubious investigation report that determined discriminatory comments from a colleague were not discrimination.
The worker was employed as a teacher in the technology department at a secondary school in London, Ont., run by the Thames Valley District School Board. He identified as Indigenous.
On March 1, 2016, the worker had a disagreement with another teacher in his department about the use of the department’s “tech room.” The colleague met with the school principal and said that the worker “treats the tech room like his own personal reservation.” The colleague later acknowledged making the statement and apologized.
The principal reported the comment to his superintendent, although he didn’t say anything to the colleague at the time.
Discrimination complaint
In April, the worker filed a discrimination and harassment complaint under the school board’s harassment policy. The colleague also filed a harassment complaint against the worker.
The school board retained an external investigator to investigate both complaints. The investigator released a report containing his conclusions in June, disclosing that another teacher who was interviewed revealed that, on another occasion, the colleague angrily referred to the worker as a “fat lazy Indian” and said that he should transfer to another school in the area “to be with more of his own kind.”
The investigator determined that the colleague had made the “personal reservation” remark about the worker and that it was a “plain reference” to the worker’s Indigenous background. The investigator also considered the reports of the colleague’s other comments, but ultimately found that the worker’s discrimination complaint was unsubstantiated. He also found that the harassment complaints of both the worker and the colleague were unsubstantiated.
The school board accepted the investigator’s findings and decided to transfer both the worker and the colleague to other schools. The worker was transferred in September 2017 and the colleague in September 2018. The worker did not want to go to another school, as he had developed roles as an Indigenous, health and safety, and mental health advocate during his 14 years there. He was also a mentor to the robotics team and helped out with the school play. In addition, he had been hoping to present diplomas to his sons, who were students at the school, but he was transferred before they graduated.
The worker commenced a human rights complaint against the school board and the colleague as an individual, alleging discrimination and harassment in employment based on race, colour, ancestry, place of origin, and ethnic origin. The school board argued that the “personal reservation” statement was not discrimination because the colleague was angry and upset with the worker when he said it, while the colleague argued that one racial slur does not amount to discrimination.
Comment intended to ‘disparage and demean’
The tribunal found that the “personal reservation” comment was a reference to the worker’s protected grounds and was “intended to disparage and demean” the worker. It also disagreed with the school board’s argument that it wasn’t discrimination because the colleague was upset – someone’s emotional state did not exempt them from the Human Rights Code’s jurisdiction, said the tribunal.
The tribunal also found that, although the worker didn’t learn of the other statements until the investigator’s report was issued, they were part of a series of incidents that began with the “personal reservation” comment. Although the colleague denied making them, they were similar in nature to the first statement and the other teacher had no reason to lie, the tribunal said in finding that the colleague made the additional statements.
The tribunal determined that the colleague’s comments were meant to demean and disparage the worker and were based on his race, colour, ancestry, and place of origin, making them discriminatory under the code.
The tribunal noted that the code imposes vicarious liability on an employer for the actions of its employees during their employment. As a result, the school board was vicariously liable for the discriminatory actions of the worker’s colleague.
The tribunal found that the school board initially treated the matter seriously by conducting an investigation and using an external investigator. However, the investigator’s determination that the discrimination complaint was unsubstantiated despite accepting the principal’s evidence that the “personal reservation” comment referred to the worker’s heritage was contradictory, the tribunal said in finding that it was unreasonable to rely on the report in determining what action to take.
Reliance on investigation report
The school board acted properly in quickly appointing an independent investigator to look into the matter, but it was a misstep to completely rely on it, says Appiah.
“The principal reported the ‘personal reservation’ comment to the board and the board appeared to have accepted that the comment was made and triggered the investigation,” he says. “The investigator found the comment was made, but then made a conclusion inconsistent with that factual finding.”
It didn’t make sense that the report found that the “personal reservation” mark had been made but that there was no discrimination, which put the report on shaky ground, adds Appiah.
“The tribunal found an inconsistency between the report’s finding that there was discriminatory conduct but not discrimination,” he says. “It sends a message to employers that they should read investigation reports critically, and if there's anything in an investigation report that doesn't make sense or is contradictory, at a minimum the employer should reach out to the investigator and seek clarification or just reject the findings.”
“The school board should have acted on its foreknowledge that the comment had been made and addressed the [colleague] appropriately, and take appropriate measures to ensure the health and safety of the [worker’s] wellbeing in the workplace,” he adds.
Poisoned work environment
The tribunal also found that there was no evidence of concrete action taken by the school board following the report, so the superintendent breached their obligation under the board’s policy and the obligation to reasonably investigate. This created a poisoned work environment that could lead to additional negative consequences for the worker, said the tribunal.
If the school board was aware that the principal hadn’t taken any direct action, then it should have either ordered the principal to do something or taken action itself to prevent a poisoned work environment, says Appiah.
“When these types of comments arise in the workplace, even if they appear as one-offs, employers have an obligation to take measures to address them,” he says. “Otherwise, they perpetuate a poisonous workplace that makes it difficult for victim employees to work - and the creation of or maintenance of poisonous workplaces infringes workers’ rights under the Human Rights Code.”
As for the transfer to the new school, although the school board characterized it as administrative, it had punitive effects on the worker, the tribunal said.
The school board was ordered to pay the worker $20,000 as compensation for the discrimination the worker suffered and the colleague was individually ordered to pay the worker $2,500. In addition, both the colleague and the school board’s superintendents were required to complete an e-learning module on racial discrimination and human rights.
Appiah cautions that when employers order independent investigations of employee misconduct, they should think critically about the conclusions.
“It's important for employers to consider whether those conclusions align with the evidence that the investigator laid out in their report,” he says. “In this case, the school board didn't seem to do that at all, it just blindly accepted the i report.”
