Mar 12

The Difficulty of Proving Racial Discrimination in the Workplace, Toronto Employment Lawyer

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Under the Ontario Human Rights Code (the “Code”), employees are entitled to a work environment free from discrimination and harassment on the basis of their race and/or ethnic origin.

Typically, in this day and age, racism and discrimination do not often materialize in direct in-your-face attacks or slurs, although lately there appears to have been a resurgence of this type of racism as people have become emboldened in the ‘Trump’ era of xenophobia. More often however, racism and discrimination appear in more subtle and less opaque form. For instance, a report from the Canadian Centre for Policy Alternatives, ‘Persistent Inequality’, found that there is a very large gap in earnings for racialized men and women compared to their non-racialized counterparts. The report stated that “[the] findings point to the need for Ontario to deal with the uncomfortable truth that its labour market is not equally welcoming to all immigrants” and “addressing the labour market discrimination faced by racialized workers will require a deeper understanding of racism and the different ways it is manifested in the labour market for different racialized groups.”

The courts have recognized the difficulty of proving racial discrimination. In Gnanasegaram v. Allianz Insurance Co. of Canada, the Court of Appeal stated, “It is important I think to recognize the difficulty in proving allegations of race discrimination by way of direct evidence. As others have noted, rarely are there cases where one can show by direct evidence that discrimination is purposely practiced.” In this case, the Court of Appeal overturned the trial decision because it struck out paragraphs in the Statement of Claim that referenced systemic discrimination. The Court of Appeal held that for the purposes of pleading discriminatory conduct as a basis for a wrongful dismissal claim, there was no reason to distinguish between allegations of direct discrimination aimed at the plaintiff and allegations of systemic racism in which the plaintiff might be a member of the target group.

To prove discrimination under the Code, you have to establish 1) that you have a characteristic protected from discrimination i.e. race, ethnicity etc., 2) you have experienced an adverse impact within a social area protected by the Code i.e. at work, and 3) the protected characteristic was a factor in the adverse impact. Since it is more rare that there is direct evidence of the discrimination, especially racial discrimination, it is often hard to detect and often the available evidence is based on the circumstances and contextual factors. Even in cases where there is no direct evidence, the legal test and threshold for discrimination do not change. In these cases where the evidence is intangible, it is especially difficult to prove the discrimination even though the sting of the discrimination feels very real.

What can you do if you are racially harassed or discriminated against?

If you believe you are being harassed, you do not have to endure that behaviour. If you feel comfortable, you should attempt to tell that person to stop and if it continues, report it to your human resources department or to a manager. However, if you are fearful that saying something to the person might put you or your job at risk, you should tell someone else in authority in your organization.

Under the Code, you are protected from reprisal, which means it is your right to raise issues about racial discrimination or harassment without facing punishment or the threat of it. If you are facing negative treatment because you made a complaint or spoke up about discrimination in your workplace, you should contact a lawyer to get advice about what further steps you can take. If you are not satisfied with how your workplace has responded to the issues you have raised or the issues continue to persist, you may want to explore your legal options with a lawyer.

Major Keys

Document. Document. Document. It is very important to document as much as you can in writing. Even if the act itself did not occur in writing, make sure to document in writing any complaints or reports you make to your human resources department or manager. Having a written record can be helpful later on if you need to escalate the issue.

Employers, it is your responsibility to keep the workplace free from racial harassment and discrimination and safe and comfortable for everyone. Consider creating policies in the workplace regarding harassment and discrimination that outline a process that will be followed should an incident occur. Make sure to handle all complaints or raised issues with seriousness and empathy. If you’re unsure where to start in addressing an issue, consider contacting an employment lawyer to assist with providing guidance and direction on handling the matter effectively.

About the Author: Busayo Faderin is an associate lawyer at Monkhouse Law where she practices Employment, Human Rights and Disability Insurance Law. Busayo can be reached at busayo.faderin@monkhouselaw.com.

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