The mere possibility of discrimination is not enough

A complainant must show that adverse treatment negatively impacted their employment and a protected ground was a factor

The mere possibility of discrimination is not enough
Anique Dublin

In the recent case of Seyed-Ali v. Central City Brewers and Distillers Ltd., the British Columbia Human Rights Tribunal held that there must be more than a “mere possibility” of discrimination for a complaint to proceed to a hearing.

It is fair to say that discrimination based on race can be subtle and that the necessary connections can often only be made by inferences. However, in order for a tribunal to make a finding of discrimination, there must be some evidence in support of such an inference. It is not enough to simply say that a person’s race or ethnicity must have played a part in the adverse treatment.

Background

Seyed-Ali began working for Central City Brewers + Distillers on Feb. 19, 2018, on a seven-month contract. His co-worker, Kory Black, was responsible for training him. The two men did not get along from the start and their relationship quickly deteriorated.

In an attempt to salvage their relationship, on June 19, 2018, a meeting was arranged between Seyed-Ali, Black and their supervisor. The meeting did not go well and at one point during the meeting, Black said “If I don’t leave right now, I’m going to break something in this room that doesn’t belong to me.” Seyed-Ali interpreted that as a direct threat towards him. The supervisor, however, did not see it that way, she understood it to mean that Black was referring generally about items in the office. During the meeting, Black also mimicked Seyed-Ali’s accent and limp.

On July 19, 2018, Seyed-Ali complained to the HR manager about Black’s treatment towards him. He also expressed his disappointment that the company had not taken more action to address Black’s bullying behaviour.

On July 23, 2018, the HR manager met with Seyed-Ali to discuss his concerns. At the end of the meeting, Seyed-Ali provided the HR manager with a doctor’s note that said he was unable to work in any capacity until July 27, 2018. He subsequently submitted a second medical note which said that he was not able to return to work for one month.

An investigation was initiated into Seyed-Ali’s allegations. That investigation concluded with a report dated Aug. 1, 2018. The investigator concluded that Black’s comment during the June 19 meeting was not directed at Seyed-Ali or any individual and therefore did not constitute bullying or harassment. However, the investigator did conclude that Black used inappropriate language and volume and as a result, Black received a written warning. 

Seyed-Ali was not satisfied with the outcome of the investigation and he refused to return to work after his medical leave ended. As a consequence of his continued unauthorized absence from work, his employment was terminated.

Seyed-Ali filed a complaint against the company with the British Columbia Human Rights Tribunal. He alleged that he was bullied and harassed by Black based on his ethnicity and disability. In his complaint, Seyed-Ali said that he was from the Middle East and spoke with an accent.  

In response, the company brought an application to dismiss the complaint without a hearing, on the grounds that there was no reasonable prospect of success that the complaint would succeed.

Decision

In assessing the application, the tribunal did not make any findings of fact; however, it did weigh and assess all the evidence to determine whether there was a reasonable prospect that the complaint would succeed.

The tribunal noted that for a complaint to proceed to a hearing, it must have more than a mere possibility of success. The tribunal also noted that the threshold for advancing a complaint to a hearing is low; a complainant is only required to show that “the evidence takes the case out of the realm of conjecture.”  

The tribunal held that Seyed-Ali only pointed to the possibility of discrimination. The tribunal concluded that Seyed-Ali’s broad statements about Black’s conduct towards him would not be enough to establish that his ethnicity was a factor in how he was treated. The tribunal noted that Seyed-Ali did not provide any examples of the differential treatment or a pattern of conduct towards certain groups that was different.

The tribunal also concluded that Black’s mimicking of Seyed-Ali’s accent and limp was not enough to establish discrimination. The tribunal held that not every negative comment that is connected to a protected characteristic will be discriminatory harassment contrary to the code. The tribunal concluded that this was an isolated incident made in the heat of the moment. It did not involve a racial slur and was not particularly egregious or virulent. There was also no suggestion that it happened again. The tribunal did not think that this was the type of encounter, that on its own, “warranted state intervention”.

The tribunal concluded, based on the evidence before it, that there was no reasonable prospect that Seyed-Ali’s complaint would succeed at a hearing. 

Conclusion

It is safe to say that there will almost always be some potential inference of discrimination when a person from a minority group is treated adversely in the workplace. However, as the tribunal explained in the above matter, a mere possibility is not enough. For a claim to proceed to a hearing, a complainant must provide evidence to show that the adverse treatment not only negatively impacted their employment but that a protected ground was a factor in the adverse treatment. 

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