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| Krupa Shah |
CBC News recently reported that an internal investigation at the office found Black, Indigenous and racialized workers were regularly subjected to ongoing discrimination.
Black employees say managers used the N-word “comfortably in their presence,” according to the report.
The report also found managers made Islamophobic remarks and “feigned innocence when white employees have unfairly advanced at their expense,” CBC stated.
We have been seeing much more discussions about race lately. There is frequently a power dynamic where individuals who are facing race-based discrimination or harassment may not be in positions of authority. This can create apprehension about raising complaints. There may be concerns about potential impacts on their employment or professional reputation. Fear of being perceived as difficult can also deter individuals from bringing forward allegations.
But the longer these issues fester, the worse the situation is likely to get. That is because discrimination can become more ingrained and normalized.
When an employer becomes aware of harassment, they have a legal duty to investigate and should do so expeditiously. It is important to address concerns in a timely manner while maintaining procedural integrity.
It would be interesting to see what the data from the Privy Council investigation reveals.
Data can help determine whether a policy is being applied in a discriminatory manner when there are allegations of systemic discrimination. Learning about individual experiences can also provide additional context that helps explain the data.
Even though discrimination may not be blatant, it can still exist, especially with racial discrimination and racial harassment. It can be so subtle. It is rare to have someone come out and say, “I don’t like you because you are this or believe in that.”
One of the challenges when conducting investigations into allegations of racism is it can sometimes be difficult for the complainant to verbalize their experience.
In my experience as a woman of colour, I understand how lines can be blurred.
I might see something and feel uncomfortable with it, but I may not be able to put a name to it. It is not uncommon to second guess yourself and wonder if something that was said or done was related to race or gender.
You may be able to rationalize why certain actions were taken, but when you step back and witness other people being treated differently, you start to see a pattern emerge.
If you are dealing with microaggressions, someone might contend that what they said was meant to be a compliment, but there may be an undertone. For example, if you are told you speak English well, you may believe it should be taken as a compliment. However, it also implies that you weren’t expected to have that proficiency, and that begs the question of why.
My own experiences help me understand the nuanced and complex dynamics involved when investigating race-based allegations. And my legal training provides me with the skills to approach these investigations with thoroughness and impartiality.
Many people experiencing difficulties in the workplace prefer to resign from their positions and find employment elsewhere. Unfortunately, if the behaviour isn’t investigated, it may continue.
As an investigator, you must be objective and remain neutral while recognizing the different forms discrimination and harassment can take.
The field is evolving and there is always new research and education regarding workplace probes. You must ensure that when conducting your investigations, you are using the appropriate language and not outdated terms.
When our firm is called in to investigate a claim, we will determine whether we believe something happened on a balance of probabilities and whether it breached a workplace policy. We look at individual complaints and systemic issues. At times, an investigation into an individual complaint brings systemic issues to light, which we would share with the employer.
We also provide culture audits to assess the general climate within a workplace, rather than assessing a specific complaint or conflict. One of the benefits of a culture audit is that you don’t need a complainant or a respondent. People might be more forthcoming in providing information in these audits.
Workplace restoration and remediation services can also be valuable when it is clear that an interpersonal conflict between two or more co-workers is the root cause of a workplace issue.
Of course, recognizing that there is a problem is an essential first step. Sometimes people are not even cognizant that what they are doing is discrimination. But remember, under the law, you don’t need to have an intent to discriminate.
That is why an investigation conducted expeditiously is imperative. It can help improve the workplace culture, protect people’s rights and avoid costly litigation.
Krupa Shah is a lawyer and workplace investigator at Mortimer Khoraych PC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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