Was it retaliation? Why employers must tread carefully after discrimination complaints

When a worker alleges discrimination, and the employer’s investigation finds no evidence to support the claim, many believe the matter is resolved.  

But a recent B.C. Human Rights Tribunal decision shows that what happens next can carry even greater legal risk—especially if the employee is disciplined or dismissed soon after raising concerns. 

In Sarba v. Ruskin Construction Ltd., 2025 BCHRT 74, the Tribunal found that a Black construction worker was subjected to months of racial slurs, including the N-word, an inadequate investigation including more slurs, and ultimately a termination that amounted to discrimination based on race.  

Even though the employer argued that the complainant had quit, the Tribunal found otherwise, concluding that the decision to stop scheduling him for work was linked to his complaints, not job performance or conduct. 

Retaliation after a complaint is still discrimination 

According to employment lawyer Andrea Raso of Clark Wilson in Vancouver, while the case is a clear example of racial discrimination, it also illustrates a broader risk for employers: that retaliation—real or perceived—can become the basis for a successful human rights complaint, even where the original complaint was not substantiated. 

“Retaliation happens when I have suffered that discrimination, and I have complained about it, launched some sort of internal complaint or external complaint, and as a result of that, I have been retaliated against,” he explains.  

“There's been retribution. So, for example, I complained to my human resources manager that my supervisor discriminated against me.” 

The situation can quickly escalate when the person being complained about—often a direct supervisor—learns of the complaint and reacts negatively. 

“Of course, the supervisor will find out about it, because the employer has an obligation to do an investigation,” Raso says. “And so the supervisor does something,” she says, adding that in many cases, that “something” is a dismissal. 

Termination after complaints a common employer risk  

Raso notes that employers often interpret a complaint as a signal that the employment relationship has broken down and is no longer salvageable. Rather than inquiring further, they may assume the employee wants to leave and initiate the separation to ease tension. It’s here that employers expose themselves to risk by appearing to be retaliatory, she says. 

“Most often, the kinds of retaliation complaints we see is when there has been an outright termination,” Raso explains. 

“Not because there's any maliciousness on the part of the employer. The employer just looks at the situation and says, ‘Obviously there is some bad blood or some toxicity in the work environment that is making this employee unhappy, and so they've come forward and made this complaint. So we think that we need to rectify this by terminating the complaining employee.’” 

This strategy, however well-intentioned, can backfire legally if the employer cannot demonstrate a legitimate, non-retaliatory reason for the termination, says Raso.  

In Sarba, the Tribunal scrutinized the employer’s actions during and after the suspension of both workers involved in a physical altercation. Although the other worker was reinstated and flown back to site, Sarba was never contacted. The Tribunal found this disparity to be evidence of discriminatory reprisal. 

Documentation gaps and procedural errors 

Iman Hosseini, employment lawyer at Alexander Holburn Beaudin in Vancouver, says Sarba illustrates how basic gaps in documentation can shift the case. 

“In this case, some of the fact findings turned on essentially two different versions of the facts, and ultimately turned on the evidence that was available to corroborate each side's version of the facts,” he says.  

“To me, it seemed like the employer had not documented things properly.” 

Hosseini also notes that the employer’s failure to document the complainant’s departure from the job—an issue that became central to the Tribunal’s findings—was a critical mistake. “If there was in fact a resignation, the employer should have sent a letter confirming that.” 

Another key takeaway from this decision is the importance of avoiding any perceived adverse action against an employee who raises a concern, he says.  

This holds true even if the actions are informal or performance-based – such as discipline or restructuring – that could be misinterpreted as being linked to the complaint. Documentation, Hosseini says, is key. 

“What I always tell clients is to even send an email to yourself, or a memo to file saying, ‘These are the performance concerns here. These are the reasons why we're deciding to terminate this individual, or disciplining them,’” he says. 

“Just so that, if later on, any indication or any claim that there was reprisal or retaliation is raised, that documentation is going to be key, and it's essentially going to be ‘exhibit A’ in any proceeding that's commenced.” 

Look beyond complaint to workplace issues 

Even when a complaint is dismissed, employers should not ignore the underlying cause for the complaint—be it poor communication, strained working relationships or systemic issues. 

Raso explains that a better approach for employers is to acknowledge the complaint and seek a forward-looking solution. 

“A lot of employers think that as soon as their investigation has made a finding, that there's no discrimination, that there's been wrongdoing on the complainant’s part,” he says.  

“That's very risky, because you're obviously really going to open yourself up to a human rights complaint.” 

In Sarba, the Tribunal criticized the employer for failing to examine how a workplace dynamic—where the complainant was one of few racialized workers—might have contributed to the complaints. This failure to assess the social context was a key factor in the ruling. 

Hosseini also stresses the importance of practical training instead of relying only on policies. 

“Having policies is one thing, but having your management and staff trained on how to handle complaints is particularly important, and something that this decision highlights,” he says.  

“Essentially, the decision highlights how failure to do that, or having management who are not well trained in with respect to dealing with complaints, can result in further harm to the worker and then liability for the employer as well … Document every step taken after a complaint is raised, including the support offered and the communication and the tone.” 

Retaliation complaints rising across tribunals 

Raso notes that retaliation complaints are on the rise, not only at human rights tribunals, but also under other legislation, including the Workers Compensation Act and Employment Standards Act. 

“We've seen a significant uptake in retaliation complaints, and not just in the human rights arena, also in employment standards,” says Raso. 

Hosseini observes the same trend and notes the difficulty of defending these complaints under the “taint” principle. 

“These prohibited action complaints pop up more and more, and they're very difficult, in my view, to defend … because of this whole ‘taint principle’,” he explains. 

“All the work the employee needs is to prove that [a complaint] played a small role, very small role, but still a role. And then your liability is established, and then you go on to the remedy stage … even if there's some indication that part of the decision to terminate, or leading to the adverse impact on the worker, had to do with them raising a health or safety issue, then you have a very difficult time as an employer in defending those types of complaints.” 

Next steps for HR and leadership 

For HR professionals, the lesson is to think beyond the outcome of the initial complaint, Raso explains.  

Even if the complaint does not result in a finding of discrimination, the employer’s response must remain neutral, well-documented and focused on maintaining a safe and respectful workplace for all parties. 

“Clearly, the complainant wasn't happy about something, and so it's doing that extra work after the … unfounded decision has been made,” Raso says. 

“I think that’s really the important part, to hopefully salvage the employment relationship, and, of course, to protect from potential liability.”