'Employers are at risk of patterns of subtle discrimination taking place under their noses,' says employment lawyer
In recent years, there has been a lot of focus on anti-discrimination strategies in the workplace.
But two judgements in Ontario and B.C. illustrate that what constitutes discriminatory behaviour in the workplace is always evolving, and even the most DEI-conscious employer can be found guilty of bias.
“We keep identifying these ways that we implicitly, and without knowing, end up marginalizing or overlooking or hurting employees in the workplace, often unintentionally,” said Jennifer Berdahl, professor of sociology at the University of British Columbia. “But as soon as it gets pointed out, it's something that you have to become aware of, and you can't rely on this ‘Oh, I didn't mean to,’ anymore.”
It is essential that HR departments, managers and supervisors are well-versed in inter-cultural issues and are equipped with practical tools to mitigate bias, said Sheila Mecking, partner at Stewart McKelvey in Fredericton.
“Without this expertise, employers are at risk of patterns of subtle discrimination taking place under their noses. They are also at risk of having diverse team members leave the organization as a result of not feeling included and respected.”
Black construction labourer described as threatening
In the first case, a Black male employee working as a labourer on an underground train construction project in Toronto was let go after two years of employment. In its termination letter, his employer claimed a pattern of “inappropriate conduct, harassing and threatening in nature that has caused co-workers and supervisors to be very concerned about their and other employees' safety and well-being” as the reason for dismissal.
The employee claimed discrimination based on race, and the Ontario Labour Relations Board (OLRB) agreed, finding that although there was no intentional discrimination on the employer’s part, unconscious or implicit discrimination had directed the events that led to the termination.
The employee’s union, Labourers’ International Union of North America, Local 183, filed three grievances against the employer, CTS (ASDE), on the worker’s behalf. All three grievances alleged discrimination on the basis of race or national origin, in violation of both the union’s collective agreement and the Ontario Human Rights Code.
DEI-focused employer found to be discriminatory
CTS is a large company, with around 600 employees, 200 to 300 being labourers. According to the Labour Relations Board decision, CTS promotes diversity and inclusion in its workforce, and “has hired a significant number of apprentices and journey persons from historically disadvantaged groups (Black youth at risk, former prisoners, women in trades) in the communities and cultural pockets surrounding, and affected by, construction of the project’s line of transit stations.”
The company also has a workplace violence and harassment policy that professes “zero tolerance toward discrimination and violence in the workplace.” CTS also provides training opportunities to staff including a voluntary course on unconscious bias, available only to management.
According to OLRB, on at least three occasions, the employee in this case was perceived by co-workers and superiors to be acting aggressively or threateningly during heightened situations, and was accused of “screaming” and “yelling” and described as pounding his fists on a table. Another co-worker said he “puffed up like an alpha-male” when confronted on a work site.
“To the extent that he was perceived as yelling or screaming, those are often characteristics used to describe people of colour, women and men who stand up for themselves,” said Jennifer Berdahl, professor of sociology at the University of British Columbia.
“In the workplace, people on the receiving end perceive it as screaming or yelling, when it's just raising one's voice and standing up for oneself, because the baseline being used to judge behaviour is completely shifted for a person of colour than it is for a white person.”
Tribunal awards employee almost $1 million for unconscious bias
In a B.C. Human Rights Tribunal Case, Mema v. City of Nanaimo (No. 2), 2023, a City of Nanaimo executive, also a Black man, lost his job due to overspending on his corporate credit card. The tribunal found that he was singled out for discipline due to his race, and that the discrimination had not been intentional.
A voluntarily written “misconduct report” had been submitted to the City’s board of directors, who used it as grounds to terminate the employee without any further investigation, even though a third-party investigator had already concluded that the employee had not committed a misconduct.
The tribunal awarded the employee $50,000 in damages for injury to dignity, and a further $583,413 in recovered salary for the three years since his termination.
“This case provides a warning to employers that when a complaint is received, it is important to properly investigate and view the complaint through multiple lenses, including whether biases played a factor in filing the complaint,” Mecking said.
“If HR receives a complaint that a colleague is behaving aggressively, and the colleague is a Black man, an astute HR manager would question whether the complainant is perhaps unconsciously judging the behaviour through a biased lens that stereotypes Black men as aggressive.”
How to address implicit discrimination
In both decisions, the deciding parties admitted that there was no deliberate intent to discriminate on the part of the employer, however the intent is not the problem, they asserted.
The problem is how the aggrieved party experiences the discrimination.
“I accept as fact that the [executive] behaved truculently during the meeting in the foreman’s office… And yet, it seems to me the company reacted disproportionately from that point forward,” the OLRB panel wrote in its decision, going on to state that if the company had not escalated the situation, the employee would not have lost his job.
To make progress in addressing subtle discrimination in their organizations, employers and HR professionals need to learn to take extra time when there is a complaint against an employee who is from a minority or racialized group to assess whether unconscious bias or discrimination may be playing a part, said Berdahl.
“The easiest thing to do to catch bias is to imagine somebody else doing the exact same thing, usually a white guy doing the exact same thing, and then if the scenario would play out differently, or people would respond differently.”
It is also important for HR to assess if they themselves are reacting from a place of bias, she said.
“There's a very uneven response from managers – and HR personnel themselves – to complaints, depending upon whether the complaints involve a perpetrator who is marginalized, or a perpetrator who is powerful. So if it's a marginalized perpetrator, I think taking that extra step of considering whether or not there's bias going into the complaint would be very important to do.”
