Why intent still matters for HR — even when impact is severe, says legal expert
When it comes to workplace discrimination, Canadian employers and HR professionals are often asked to navigate the complex interplay between an employee’s intent and the impact of their actions.
In October 2021, a Toronto high school teacher arrived at work in a Halloween costume that included full blackface. The incident shocked students and the community, leading to the teacher’s termination and a high-profile arbitration.
However, a recent arbitration decision reinstated the teacher, finding that while the harm was severe, the lack of intent and the teacher’s remorse were significant factors.
Wade Poziomka, partner at Ross & McBride, explains that under Canadian human rights legislation, "intention doesn't matter."
Human rights law: impact over intent
Even if an employee did not mean to discriminate, if their actions result in harm based on a protected ground—such as race, gender, or disability—there can still be a finding of discrimination and a remedy ordered, Poziomka stresses.
The focus is on preventing discrimination and compensating those who suffer harm, not on whether the harm was intended.
“When you're looking at this from 'How do we deal with an employee who may have engaged in discrimination?' in my view, intention matters a lot, because you're looking at is the work relationship still viable," he say, illustrating this point with a landmark British Columbia case involving misgendering.
“Human rights law is concerned not with intentions, but with impacts. This does not mean, however, that intention is irrelevant. A person's intention can go a long way towards mitigating or exacerbating the harm caused by misgendering.”
In that case, one employee misgendered a colleague intentionally, while another did so by mistake and quickly corrected themselves. The tribunal recognized that intention can increase or lessen the harm experienced by the victim.
Proportional response and the role of remorse
The Toronto District School Board argued that “the grievor knew or ought to have known that his conduct was contrary to Board policy” and that “the impact on the behaviour on the school and the community at large was severe, long lasting and irreversible.”
Poziomka says that for HR professionals, the key is to take a contextual approach to assessing intent.
“If somebody used the wrong pronouns by mistake and corrected it, for example, it's a mistake, it's a learning opportunity. It's still wrong, but the relationship is still viable," he says.
"But if they say, 'I'm doing it on purpose,' that raises the level of egregiousness of the action, and then the employer, HR professional, may recommend termination or terminate that employee.”
Employers should investigate the circumstances, assess the harm caused, and consider the employee’s intention and response, he continues.
“Are they remorseful? Will it happen again? Did they intend to do it?" he says.
"I think if you're missing any one of those, you're going to make a bad decision. With all of that together, you can make a contextual decision that's right for your workforce, because it really is a bit of a balancing act, and you generally want to have a proportional response in the non-unionized environment.”
Unionized versus non-unionized environments
The arbitrator in the Ontario decision found that while the teacher did not intend to cause harm, the impact on the community was significant.
“I think this arbitrator struggled with the decision, and it turned on some of the key findings that the arbitrator made," Poziomka notes, adding that similar facts could have resulted in different outcomes.
He also points out that the unionized context played an important role in the decision.
“Here we had a unionized environment, so he was reinstated. If he wasn't in a union, the employer could say, 'Yeah, he's our employee. We believe that he's remorseful. He didn't intend to do it. We can still have him as an employee, but we're not going to send that message to our constituents or customers or other employees. You're fired without cause. Here's a package that's a decision we've made.'”
