The issue of systemic racism (particularly against Black and Indigenous persons) has been at the forefront of public discourse in Canada in recent weeks. As the conversation has taken hold, many employers have started to interrogate their own structures in order to both recognize and address racism in their workplace.
The Dialogue Surrounding Racism is Changing
Employers can expect that this renewed national conversation about systemic racism will update the workplace lexicon in respect of discrimination. The concept of "microaggression"-a comment or action that subtly and often unconsciously or unintentionally expresses a prejudiced attitude toward a member of a marginalized group (such as a racial minority)1-is becoming a common term to refer to workplace conduct that is an expression of systemic racism.
Likewise, the notion of "unconscious bias", that is, implicit prejudice against certain groups, leading to unintentional differential treatment, now forms part of the mainstream understanding of discrimination. Although employees may not have raised incidents of microaggressions or unconscious bias with their employers in the past, the common understanding of what is "discriminatory" is changing.
Courts and tribunals are more frequently recognizing unconscious bias as a form of systemic racism.2 Likewise, while microaggressions have received little judicial consideration to date, the concept is beginning to surface in Canadian jurisprudence.3 In light of increased public conversation about systemic racism, employers should be cognizant of the concept of microaggressions, and their ability to perpetuate discrimination in the workplace. Employers should be alive to the fact that conduct which may have been previously viewed as innocuous may no longer be deemed acceptable by courts and adjudicators.
Furthermore, employers ought to recall that discrimination need not be intentional in order to constitute a violation of human rights legislation, and that an employer's duty to address discriminatory behaviour in the workplace may be engaged when an employee alleges they have been subjected to sustained microaggressions and unconscious bias (which is by definition, unintended) in the workplace.
Ultimately, complaints about racism in the workplace are not necessarily going to arise only from single, isolated incidents of overt racism-they can also stem from a workplace culture which creates a space for microaggressions and unconscious bias over a sustained period of time.
Legal Liability and Reputational Harm
Confronting systemic racism in the workplace is not only an aspect of corporate social responsibility. An employer's failure to adequately address systemic racism may also result in liability in several areas, including:
- Human Rights: Federal and provincial human rights legislation prohibits discrimination in employment on the basis of race, colour, ethnic origin and place of origin. The Supreme Court of Canada has confirmed that systemic discrimination is a violation of human rights legislation.4 An employee or prospective employee may seek damages under such legislation from employers who allow systemic discrimination to pervade the workplace.
- Occupational Health and Safety: Most jurisdictions have legislation which prohibits violence in the workplace, including workplace harassment. A "poisoned work environment" constitutes workplace harassment, and may arise from hostility towards racialized individuals. An employer may be liable under human rights legislation for the creation of a poisoned work environment, or liable under occupational health and safety and/or workers' compensation legislation.
- Common Law: A poisoned work environment may entitle an employee to resign, claim constructive dismissal, and seek wrongful dismissal damages against the employer. This liability may arise notwithstanding a claim in human rights and/or occupational health and safety. An employee may also claim aggravated or punitive damages related to discrimination in employment.
Liability under human rights, occupational health and safety, and/or in civil actions may not only result in substantial financial costs to an employer, but can also result in significant reputational harm.
What Should Employers be Thinking About Right Now?
Employers must take active steps against systemic racism in the workplace, and create a workplace environment that is free from discrimination or harassment. This may involve:
- Creating harassment prevention policies which are accessible to employees, and which address systemic and insidious forms of discrimination such as microaggressions.
- Implementing policies through training relating to unconscious bias, microaggressions, and subtle forms of discrimination.
- Using progressive discipline to "formalize" discipline against employees who engage in breaches of harassment policies.
- Conduct robust investigations where there is potential discrimination, and rely on a neutral third party investigator with the appropriate competencies to make determinations.
- Monitoring approach towards systemic racism to ensure that the policies in place are effective.
- Stay informed and be receptive to employee feedback.
Miller Thomson's Labour & Employment group has expertise in the areas of labour & employment law, human rights, and occupational health and safety, and can assist employers to implement a policy infrastructure to combat systemic racial discrimination in their workplaces.
1 Merriam-Webster definition of "microaggression."
2 See Québec (Commission des droits de la personne & des droits de la jeunesse) c Gaz Métropolitain inc, 2008 QCTDP 24 at para. 446, where the Québec Human Rights Tribunal noted that "systemic discrimination in the workplace is "maintained through an institutional culture permeated with biases, prejudices and unconscious stereotypes that favour the people already in the workplace and gear candidate selection toward people similar to those already holding the job, thereby perpetuating the exclusion of people who have not had an opportunity to penetrate the workplace."
3 See McDonald v CAA South Central Ontario, 2018 HRTO 163. Since the beginning of this year, two decisions have discussed the term: Blackburn v Elementary Teachers Federation of Ontario, 2020 HRTO 7 and Arnout v LUSO Community Services, 2020 HRTO 383.
4 2012 SCC 61.
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