Rise in human rights complaints could be costly for HR

Over the past few years, the Alberta Human Rights Commission has worked to improve public access to its complaint process and promote human rights education across the province.

A major milestone was the launch of an online complaint form in September 2023, which was viewed over 23,500 times.

That could be one reason why the commission received 2,255 potential human rights complaints in 2023-24 — an increase of 36% from the previous year.

Plus, the number of hearings that proceed before the tribunal rose substantially from seven in 2018-19 to 31 in 2023-24. At the time of the report, 41 hearings were scheduled for 2024-25.

While another big reason for the rise in numbers could be explained by COVID vaccine cases working their way the system, the findings still mean a likely increase in legal fees for employers, says Cristina Wendel, partner at Dentons in Edmonton.

“Typically, employers .... will get counsel to represent their interests, whereas the complainants, a few will have their own counsel, but by and large, they're not represented by their own counsel, but they are represented in most cases, by counsel for the director.”

Just because something might not ultimately be successful or bona fide doesn't mean employers don't have to deal with it in some way, says David Price, partner at Bennett Jones in Calgary, “whether that's responding to it or incurring some fees or outside counsel to deal with it or having individuals in your HR department deal with it and spend time and effort dealing with it.”

Many complaints not accepted

While 1,047 complaints were accepted by the commission, marking a 10-year high, that’s roughly 50% of the overall complaints that don’t make it through that initial screening.

It’s hard to say why so many complaints ultimately fail because decisions at the director level are not disclosed, says Wendel.

“There's a number of grounds in the act that the director can rely on. The ‘reasonable prospect of success’ is certainly, I'd say, the most common one.”

A lot of them are the vaccine cases still, she says, and “it's a question of whether the complainant has been able to establish that there was a true religious ground for rejecting the vaccine or for not complying with the employer's policy, as opposed to just more of a personal belief.”

There are also more complaints being dismissed on evidentiary grounds, whereas before there was a reluctance to take that route because people hadn’t had the opportunity to present their case at a hearing, to give testimony, says Wendel: “We're really just talking about documents being exchanged by the parties.”

Another reason for dismissals of complaints? The matter is best or is already being considered in another forum, she says.

“Typically, that ties into the unionized environments, and so the employee has already filed a grievance that their union is taking care of.”

Advice for HR: Take complaints seriously

Of course, employers want to avoid any discrimination complaints reaching the commission or tribunal, so it’s advisable to be proactive by addressing complaints early.

That means some kind of investigation, which might involve a senior member of the management team or an outside investigator to do that, says Price.

“It doesn't have to be that extensive when you're dealing with a more general complaint: HR can do it themselves, a manager can do it themselves, as long as they're not in a conflict position, and they can just interview the interested parties and the respondent, the complainant, and form a view on that.”

“It doesn't have to be… a 10- or 20-page report. It could be something a lot more streamlined, it could be a summary and determination.”

Of course, the employee may disagree with the findings — as often happens with harassment — and the complaint is escalated to the commission and possibly the tribunal, he says.

“In terms of a remedy, at the end of the day, it can help the employer to say, ‘Well, look, based on what we knew, we investigated, we didn't necessarily do any discrimination against the individual making the complaint, and we tried to do whatever we needed to do to remediate the complaint and see if it was bona fide.’

“And then if the tribunal does find ultimately that there was, for example, harassment, they might mitigate any sort of remedy awarded against the employer by looking at the steps that they did take.”

It’s important for the employer to make sure they have good procedures and policies in place so that if employees feel they're being subjected to discriminatory treatment, they have an avenue to take, says Wendel.

“Now, a lot of these cases are termination, so that's not going to be an issue, but where it's in the day-to-day events at the workplace that there's some discrimination or perceived discrimination happening, if the employee has a process to go to HR, go to management, and say, ‘Hey, I think I'm being mistreated,’ the employer then has the opportunity to deal with it, address it, and hopefully then avoid the employee feeling the need to go to the commission.”

Useful tool for HR: Fair and reasonable offers

Preparing for a hearing can be time-consuming and costly for employers, says Price, but a recent case of Lambert v Canadian Natural Resources Limited, highlights a tool under the Act that permits the director to dismiss a complaint if the employee has refused a “fair and reasonable offer” of settlement.

Previously, the commission took the perspective that a fair and reasonable offer had to be approximate to what the complainant would obtain if they went to a hearing and succeeded, meaning nearly 100%.

But employers’ counsel have said that doesn’t make sense, he says.

“[They’ve said] ‘A settlement is something where we're compromising, and so it's got to be between zero and 100%, it can't be on the upper end all the time. That can't be the requirement for what's fair and reasonable.’ And the tribunal, the director, has consistently come back now and said, ‘That's correct, it's got to be something that falls within a reasonable range of outcomes.’”

That section of the Act has been used for years, but there wasn't a lot of guidance from the Human Rights Tribunal as to what is going to be considered, says Wendel, citing a similar section under the Labor Relations Act also.

“Recently, there have been decisions where the director had dismissed it on the basis that the employer had made a fair and reasonable offer that had not been accepted, and… the tribunal level upheld that dismissal… so it’s very helpful to have some more guidance.”

Advice for HR: Don’t avoid mental disabilities

The commission’s report highlighted that physical and mental disabilities were the most cited grounds in accepted complaints.

While many employers have gotten a lot better at dealing with the more obvious things like gender and sexual harassment and racial discrimination issues, mental and physical disabilities are more of a challenge, says Price.

“Employers, I think sometimes, are a little less willing to deal with the mental disabilities, whether it's to recognize them or to accommodate them properly, and that's often the pitfall that then lead to a complaint and then lead to a successful decision against the employer.”

And after COVID, there will be more disputes coming down the pipe at the tribunal level on mental disabilities, “particularly depression and generalized anxiety disorders, where I think employers have had lots of difficulty either recognizing or wanting to deal with these issues,” he says.

“You've got to make reasonable accommodations short of undue hardship.”

More and more employees are going on mental disability leaves in particular, says Wendel.

“We often see situations where there's some sort of performance management going on and that often results in the employee going on a leave [and] to some degree, tying the employer’s hands.

“Then it becomes a case of optics. So, the employees had a medical leave. They come back from work; they're terminated. The optics are terrible. So not to say that means it's discriminatory, but when you're looking at the fairly low bar to get that complaint in and filed, the prima facie case, it's fairly easy for an employee in that situation to get that threshold through.”

Processing accommodation requests

When employers are looking at the disability instances and accommodation requests, they should remember that it's as much about the process as the substance, she says.

“What are the restrictions and limitations that the employee has from the disability? What are their work duties? What are the doctors say about what they can and can't do? How can you fit that into the workplace? Is there an opportunity for the employee to continue working with some modifications?”

And then they should document throughout the process what they have considered, what worked and what didn’t, and outline the costs, says Wendel.

“If you end up before the tribunal, you're going to have to actually say, ‘Well, here’s the math, here's the reason that the numbers get us to that undue hardship test.’”

Also it’s about recognizing, on the management side, that someone with a protected ground isn’t immune, she says.

“Just because someone is on modified duties, for instance, doesn't mean they're not still bound to a certain level of performance and expectations, attendance, those types of things.”

Last tip for HR: Don’t assume you’re out of danger

A final note for HR: There seems to be more of a lag, probably tied to the number of complaints, between when a complaint is filed with the commission and when it's processed and gets to the employer, says Wendel.

Where before it may have been a month or two, now it can stretch to six months or a year, she says.

“That is a problem for employers, because they get that sense of security that, ‘Oh, OK, we're past the one-year human rights limitation period. They must not be doing anything about this.’ Meanwhile, [the employee] filed a complaint, it's just still sitting there waiting to be processed.

 “So, for employers, don't assume that you're out of the danger … You need to give yourself a buffer in terms of document retention and things like that… just don't get too comfortable.”