Employers must be proactive when dealing with racial equality

By LegalMatters Staff • Recent racial turmoil is a grim reminder to employers to address their workplace discrimination policies and to be proactive in their processes, says Ontario employment lawyer Nadia Zaman.

“We’ve seen two pandemics this year. One is COVID-19 and the other is a race pandemic,” says Zaman, an associate with Rudner Law. “Although the issue of systemic racism has been prevalent in our society, and in particular involving Black and Indigenous persons, this recent discourse has brought it to light unlike before to the extent that employers have started to examine how they can address the problem in the workplace.

“Employers can no longer wait for something to happen and then take the action needed for damage control. Proactive steps are required to ensure their workplace is free from discrimination, harassment and workplace violence.”

She tells LegalMattersCanada.ca systemic racism “can result from unconscious biases and can manifest in microaggressions in the workplace.

‘Subtle forms of discrimination’

“Racial discrimination has often been difficult to prove before courts and tribunals because you have to link the adverse treatment to one of the protected grounds under human rights legislation,” says Zaman. “Because there are so many subtle forms of discrimination it can seem as if there’s a lack of evidence showing the link between the adverse treatment and the protected ground of race.”

She says it can be intimidating to come forward with a complaint due to fear of possible repercussions, even though employers are prohibited from engaging in reprisals against individuals attempting to assert their rights.

“If they remain in the workplace there might be an issue with respect to working alongside their colleagues,” Zaman explains. “There is the worry that their employment may be in jeopardy or they might not be considered for promotion. Many times, individuals are also worried about bringing forth certain types of allegations which may be seen as problematic for the company because they may get defensive about it.”

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She says it is important for employers and workers to educate themselves on the issue of systemic racism.

“There are some companies where these issues have existed but no one talks about it because it is so ingrained in the workplace culture that people see it as something they just have to deal with if they want to keep their job,” says Zaman. “Obviously that’s not the case. In a toxic work environment, employees have the right to raise that concern with the employer.”

Knowledge is the key

It is then the employer’s obligation to conduct a fair and impartial investigation, she says. Knowledge can go a long way to heading off potential problems, says Zaman.

“Education is essential and that’s why training is key,” she says. “If workers are informed, they can identify these issues.”

Zaman stresses that merely having a policy will not be effective if workers don’t fully understand it.

“It is not enough if someone just receives a copy of the policy and is asked to sign a consent form agreeing to abide by the terms,” she says. “When you train employees on the subtle forms of discrimination, individuals can actively try to avoid engaging in that type of conduct. They are able to recognize when they see or hear systemic racism as opposed to just brushing it off.

“There’s a significant difference between having a policy for the sake of having a policy versus having a policy that you want to embed into the culture of the workplace,” Zaman adds.

Take feedback from employees

She encourages employers to thoroughly examine their policies and procedures. Take the feedback from employees when it is appropriate and then “figure out what needs to happen to ensure that there is no systemic racism in the workplace,” Zaman says.

“This is one area where employers should be proactive and examine the processes. If you haven’t done so in the past few years now might be a good time,” she says.“It is important to have a policy in place rather than waiting for someone to come forward with a complaint.

“There should also be a discipline procedure and it should be implemented and applied in a consistent fashion,”  Zaman adds.

Company rules should be updated regularly to reflect changing laws or if “the employer recognizes that something isn’t really working,” she says.

Zaman says policies covering discrimination, harassment and violence in the workplace are crucial and she suggests doing the following:

• examine the workplace culture and processes to see if there are ways to make improvements;
• review employee retention as well as promotions that take place within the workplace to ensure they are equitable;
• make sure all employees follow the policy and are aware of the consequences for breaching it;
• allow individuals to ask questions or raise any concerns about company policies;
• avoid tokenism practices which could include hiring one person of colour to be a symbol of diversity within the organization;
• provide training to recognize subtle forms of discrimination.

‘Significant financial liability’

“Employers should keep in mind that they may not only face significant financial liability due to systemic racism, but there may also be a loss of employee morale in the workplace as well as reputational harm to the organization. These are serious issues,” says Zaman, adding those with questions should seek legal advice.

Discrimination, harassment and violence policies should be ingrained “in the workplace culture to the point where people are comfortable coming forward with their concerns,” she says.

“An examination of the systems and processes in place is vital because they may be less favourable to certain individuals,” Zaman says. “Those are things that should be reviewed and revised as needed in order to ensure there is no systemic racism in the workplace.”