Employer's application to have complaint dismissed fails
A worker’s racial discrimination complaint against a school board has some reasonable prospect of success and will proceed to a hearing, the British Columbia Human Rights Tribunal has ruled.
The worker was an Indigenous educator for the Vancouver School Board (VSB). She was hired in 2006 as part of an Aboriginal Education Enhancement initiative and was the only Indigenous teacher at her school.
The initiative was designed to increase Indigenous student’s sense of pride, acceptance, and caring in their schools while ensuring their chances of academic success improved. The worker strove to support all racialized and gender diverse students, although her anti-racist advocacy sometimes stoked tensions with white educators at the school.
In May 2019, the worker expressed her concern about a proposal to cut a First Peoples course because of low enrolment at a staff committee meeting. The worker spoke in favour of the course, but framed it in an accusatory way that referred to the school as racist. Some staff were concerned that parents might object to the course and pushed back at the worker’s support for the course. After the meeting, a white department head told the worker that she shouldn’t have brought the issue to the committee.
A short time later, some Black students approached the worker saying that a teacher was saying the n-word in their classes. The worker arranged for them to give a presentation to staff about it on June 11.
Discussion of racial issues
However, after the presentation, a male teacher approached her and said he had heard people talking about her and he was warning her that if she didn’t stop talking the way she did, “bad things” would happen to her. He suggested other teachers would turn their backs on her, hurting her career, and she was guilty of talking about racism too much. The worker explained why it was important to her to speak out and the male teacher replied that “she was not Martin Luther King Jr.” and kept warning her to stop talking about race as much as she did.
According to the worker, she felt afraid after this interaction, particularly since the teacher hadn’t been at the staff committee meeting, meaning people were talking about her. She said she didn’t feel safe going into the school after that.
On June 21, the worker filed a workplace bullying and harassment complaint with the VSB about the interaction. The VSB hired a third-party investigator, who was a white woman with extensive investigation experience and was a partner at a law firm.
The investigator interviewed the worker, the male teacher, and three other white witnesses after the summer break. The worker raised concerns that the investigator was white and had no specific training on racial discrimination and harassment, but the investigator said she had performed many investigations about discriminatory conduct had had completed training on trauma-informed investigations, bias, and cultural awareness in investigations.
Investigation report found no harassment
The investigator issued a report on Dec. 9, finding that everyone was credible but the male teacher’s conduct didn’t amount to harassment under the VSB’s workplace harassment policy. The report found that the worker found the interaction “threatening and unwelcome” but the male teacher didn’t know or ought to have known the conversation would be unwelcome. The investigator noted that the male teacher could “benefit from some coaching or education with respect to understanding and tackling culturally sensitive issues,” but the worker also could go about advancing her perspective in a better way.
The worker wasn’t happy with the investigation report and filed a grievance alleging “systemic racism/bias” in the investigation. The VSB denied the grievance, maintaining that the investigation was fair and applied the correct policies and law.
On June 11, 2020, the worker filed a human rights complaint against the VSB and the male teacher, alleging that the interaction and the VSB’s response to it were discriminatory. She claimed that the investigation report was biased and disregarded her evidence about the wider context of racial discrimination within the school, and it failed to appropriately resolve her allegations.
In April 2021, two white teachers made bullying and harassment complaints against the worker, alleging that she intimidated and harassed them by publicly accusing them of being racist or white supremacists. The VSB investigated and warned the worker that it was a confidential matter.
However, the worker told others about the complaints and the VSB issued her a letter of discipline in October.
Another investigator determined that there was no evidence that the worker called anyone a racist or white supremacist and the white teachers’ complaints were “grounded in white fragility.”
Settlement agreement
In August 2021, the worker resolved her complaint against the male teacher with tribunal-assisted mediation with a non-confidential settlement agreement that acknowledged it didn’t affect the worker’s complaint against the VSB.
In January 2022, the worker amended her human rights complaint to add that the complaint and letter of discipline against her were further examples of discrimination, with the latter an attempt to punish her for her complaint.
The VSB asked the tribunal to dismiss the worker’s complaint without a hearing, arguing that it had no reasonable prospect of success. It also argued that the substance of the worker’s allegations around the male teacher were resolved in a settlement agreement.
The tribunal noted that the onus was on the worker to establish that she was adversely impacted in her employment and her race, colour, and ancestry were factors in that adverse impact.
The tribunal found that the conversation between the male teacher and the worker occurred at the end of the workday on school property in the parking lot, and it was related to the worker’s anti-racism work at the school. The was sufficiently connected to the worker’s employment to bring the VSB’s potential liability “out of the realm of conjecture,” the tribunal said.
Reasonable prospect of success
The tribunal also found that the worker had a reasonable prospect of proving that the conversation adversely impacted her in her employment in connection with her protected characteristics, as it made her feel unsafe at work and contributed to a toxic work environment. Her feelings were related to her identity as an Indigenous woman with white colleagues talking about her and threatening her, said the tribunal.
In addition, the tribunal said it couldn’t be reasonably certain that the VSB could prove that the 2019 investigation report was an appropriate resolution to the allegations of discrimination. There was no evidence that the VSB looked at a safety plan or responded to the worker’s concern of a toxic work environment, said the tribunal, adding that the mandate of the investigator was limited to finding whether there was a breach of the workplace harassment policy.
As for the second report in 2021, there was no evidence about steps the VSB took to address the issues of racial inequality at the school or any conditions that the worker said adversely impacted her employment, said the tribunal.
The tribunal disagreed with the VSB that the worker’s complaint had been resolved in a settlement, as the settlement with the male teacher specifically didn’t affect her complaint against the VSB.
However, the board dismissed the worker’s complaint about the letter of discipline. The VSB followed its usual investigation process and the worker violated the confidentiality required for the investigation, it said.
The tribunal determined that the worker’s discrimination complaint against the VSB had some reasonable prospect of success and should move forward to a hearing. The part of her complaint relating to retaliation from the disciplinary letter was dismissed. See Bighorn v. Board of Education of School Board No. 39, 2024 BCHRT 153.
