'Sometimes you can do everything right, in that you're not discriminating against an employee or acting in a discriminatory manner, and a complaint might still be made'
A recent decision from the Alberta Human Rights Tribunal provides critical insights into how Canadian employers can prevent and defend against claims of racial discrimination.
The case, Stephen and Julien v Brazeau Seniors Foundation, 2025 involved complaints against a seniors’ housing provider, and two employees, both Black men, who alleged the organization discriminated against them based on race, colour, ancestry, and place of origin.
Specifically, the employees claimed an executive and the board chair of the employer “conspired to terminate his employment either by creating a toxic work environment so that he would quit or by manufacturing just cause to dismiss him,” the Tribunal stated.
After a detailed review, the Tribunal dismissed the complaints, finding no evidence that the employees’ protected characteristics influenced the employer’s actions.
Employment lawyer Teri Treiber of Miller Thomson in Calgary says that while this case resulted in dismissal, it still underscores the importance for businesses to foster equity while ensuring legally sound employment decisions.
“Sometimes you can do everything right, in the sense that you’re not discriminating against an employee or acting in a discriminatory manner, and a complaint might still be made,” Treiber says.
Clear performance management and documentation
According to Treiber, the best defense against discrimination claims is consistent documentation and communication; one of the Tribunal’s primary findings in this case was that the employer did follow proper performance management and progressive discipline processes, which became key evidence in refuting the allegations.
“I think the employer did a good job of following proper performance management and progressive discipline processes. It made sure to document these processes and provided communication to Mr. Stephen about them,” Treiber says.
“This became important evidence at the hearing to show that, again, that there are these legitimate business reasons for what had occurred, as opposed to them being discriminatory.”
However, keeping required documentation and following systematic processes isn’t necessarily the only best practice, says Hani Shamsi, associate employment lawyer at Grosman Gale Fletcher Hopkins in Toronto.
“Checking all the boxes is not always the right thing to do,” Shamsi says, explaining that missteps in employer communication can escalate situations.
“I think it’s sometimes more important to look beyond that and use soft skills – use leadership skills about how you motivate employees, how you bring them to the table and support their individual requests and needs.”
Overly rigid processes without fulsome dialogue with the employee can create a communication breakdown and ultimately lead to escalating employee anxiety: “If they feel like they're going to be sanctioned or disciplined for not doing something, well, I don't think it'll motivate them to continue doing what they're supposed to do.”
Avoiding perceptions of unfair treatment
Employers must recognize that pay disparities and role changes can be perceived as discriminatory, even when they have legitimate explanations.
The second employee in this case claimed he was paid a lower salary because of his protected status. The Tribunal acknowledged the validity of that concern, stating, “It was understandable that he would perceive that his race, colour, ancestry or place of origin was a factor in this.”
However, the employer provided non-discriminatory explanations for the pay difference, including differences in unionized versus non-unionized pay scales and job responsibilities.
Treiber emphasizes that while pay disparities may have legitimate business explanations, employers should still proactively address them to prevent complaints, as “the onus flips on the employer to show that they weren’t discriminatory, that they were working through the proper processes, that they were making decisions without factoring any protected grounds in terms of negative impacts to the employee.”
Shamsi adds that employers must also take active steps to address employees’ concerns, because an employee feeling heard can go a long way towards mitigating future discrimination claims.
It’s about asking, “How do we make you feel comfortable?” Shamsi says.
“And if we make you feel comfortable, you may feel more empowered to do what we're asking you to do, as long as you know we're asking you something that's proper, legal.’”
Handling allegations of a toxic work environment
Both employees alleged that the employer created a toxic work environment to push them out of their roles. The Tribunal noted the one employee’s allegation: “Beginning in December of 2014, [the employer’s] chief administrative officer and its Board Chair conspired together to terminate his employment, either by creating a toxic work environment so that he would quit, or by manufacturing just cause to dismiss him.”
The Tribunal found no evidence of a conspiracy and determined that the employee’s workplace disputes were due to performance concerns rather than racial discrimination.
Although Shamsi agrees with the Tribunal’s decision, she points out that the employer could have de-escalated the situation by addressing the complainant’s frustrations directly rather than allowing conflict to build.
“They missed that opportunity to really rectify the problem early,” Shamsi says, “and then they ended up in a position where there was multiple breakdowns, essentially, of communication, every time that these employees had to reach out to them and they did not respond the way that the employee wanted.”
The risk of overreaching disciplinary actions
One of the most controversial aspects of the case was the employer requiring one employee complainant to attend 16 hours of anger management classes, at the employer’s expense, after an incident in a parking lot with a visitor to the establishment.
Citing the classes as a “very effective and foolproof way to label [the employee] as being violent and having an anger problem,” the complainant claimed the classes were another aspect of the alleged “conspiracy” to push him and the other complainant out of their jobs.
While acknowledging the innocent intentions of the employer, the Tribunal itself commented: “a different or lesser disciplinary response might have been appropriate, or even more appropriate than what occurred,” however noting the point “is not for the Tribunal to determine.”
Shamsi strongly advises against this approach as a strategy, stressing that anger management classes – and others like them that address perceived failings of an employee – are rarely appropriate and can easily be viewed by an employee as antagonistic.
“Employers should not be offering or mandating courses like anger management as part of workplace discipline,” Shamsi says.
“It’s beyond the purview of an employer to suggest or require that level of personal development. This is a highly inappropriate step that likely worsened the situation.”
She further argues that the classes “muddied the waters” and created unnecessary complications. “It did not resolve anything,” she adds. Notably, the employee only attended one class, with no consequences – Shamsi points out that this in itself could be viewed as a failure of the course itself, not the employee’s lack of interest, and the fact that the employee attended one class in fact could show he was willing to make an effort, if minimal.
“An anger management course is a personal development aspect of the employee, that should be done outside of the work hours,” Shamsi says.
“They shouldn't be integrating that entirely into the workplace, because how do you hold an employee accountable to attending these classes? … There's a lot of liability included with that, if things don't go well, if something else goes wrong with that. So I feel like that was a very risky move.”
Effective disciplinary approaches: communication over punishment
When addressing workplace conflicts and performance issues, employers should prioritize clear communication and constructive problem-solving over punitive disciplinary measures, Shamsi stresses, as this case demonstrates, discipline can escalate some situations rather than solving them.
In this case, the Tribunal detailed a series of emails between the complainant and a manager, with increasing tension on both sides as the employee continually questioned work orders, resulting in disciplinary action.
When employees refuse or struggle to complete assigned tasks, it is important to determine the underlying reasons rather than assuming defiance. Shamsi notes that a conversation about expectations and responsibilities could prevent further conflicts.
“Discipline is very – it's a harsh form of – it’s punishment, right? You're punishing somebody for not following your directions, for not doing something that you want them to do. Understandably, you need something done. And I think there's different ways of doing it,” Shamsi says.
“I think the employer, specifically, his supervisor, should have sat down with him and said, ‘Look, you know, we have a need. We have to fulfill X, Y, and Z for work. We have to do this … let's talk about why you don't want to do X, Y, Z … we will support you in continuing to do your job.’”
Retaliation risks and employer obligations
Another key allegation involved retaliation. One of the employees said that after he filed his first human rights complaint, the employer retaliated against him while he was still employed.
Treiber warns that employers must take extra precautions to ensure that employees who file complaints are not treated differently in any way that could be perceived as punitive.
“Even if an employer believes a complaint is baseless, they should take steps to make sure the employee is not subject to adverse treatment after filing it. It’s about protecting both the employee and the organization.”
Shamsi adds that the employer in this case was protected, to an extent, by the unionized status of the employees and the consequent limits it put on them around the types of complaints they could lodge. If a similar case was brought before a superior court in a civil claim, the outcome could be very different, she says, as there would be more focus on the employer’s actions.
“They were insulated from other avenues the employee could have utilized,” Shamsi says.
“And I think if it was a non-unionized situation, this would have been a much more different decision.”
