Discrimination claims must be investigated in a timely manner

By Tony Poland, LegalMatters Staff • Allegations of “racial stereotyping, microaggressions and verbal violence” within the Privy Council Office are a reminder that employers have an obligation to deal with issues of potential discrimination promptly, says lawyer and workplace investigator Krupa Shah.

“We have been seeing much more discussions about race lately,” says Shah, of Mortimer Khoraych PC. “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, as 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.

“However, the longer these things fester, the worse they get. The discrimination can become more ingrained and normalized,” she tells LegalMattersCanada.ca. “If an employer becomes aware of harassment, they have a legal duty to investigate and they should do so expeditiously. Investigating in a timely manner is important for addressing the concerns effectively and maintaining procedural integrity.”

The 1,200 employees of the Privy Council Office support the prime minister and cabinet, helping the government to implement “its vision, goals and decisions in a timely manner.”

Subjected to ongoing discrimination

Earlier this summer, CBC News reported that an internal investigation 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.

“When we received this report, it was shocking,” Nicholas Marcus Thompson, president and CEO of the Black Class Action Secretariat, told a news conference, according to CBC. “This is the head of the public service. This is the Privy Council Office that directed the entire federal public service to address racism. While it is shocking, it is what we’ve seen across the public service, across all departments and agencies.”

Shah, whose firm is not involved in the case and comments generally, says it would “be interesting to see what the data reveals.”

“I know there are allegations where Black employees were not entitled to the same educational advancement opportunities, such as access to French-language training,” she says. “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.”

Offensive behaviour may not be blatant

Shah says she has found that even though discrimination may not be blatant, it still exists.
“Especially with racial discrimination and racial harassment. It is so subtle,” she says. “It is rare to have someone come out and say, ‘I don’t like you because you are this or believe in that.’

Shah says she understands 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,” she says. “It can be easy to second guess yourself and wonder if something that was said or done was related to race or gender.

“You can come up with different reasons for why certain actions were taken,” Shah adds. “But then when you step back and witness other people being treated differently, you start to see a pattern emerge.”

She says it can be difficult to probe instances of subtle discrimination.

‘Difficult to verbalize what they experienced’

“One of the challenges when conducting investigations into allegations of racism is sometimes when you are speaking with the complainant, it can be difficult for them to verbalize what they experienced,” Shah says, “If you are dealing with microaggressions, someone might tell you what they said was meant to be a compliment but there could be an undertone.

“For example, if you are told you speak English really 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?.”

It can also be “easy to chalk things up to ‘well, this is just how it is,’” she says.

“My experience as a woman of colour helps me understand the nuanced and complex dynamics involved when investigating race-based allegations,” Shah says. “And my legal training provides me with the skills to approach these investigations with thoroughness and impartiality.”

“There are many people experiencing difficulties in the workplace who prefer to leave and find employment elsewhere,” says Shah. “Unfortunately, the behaviour doesn’t get investigated and it can continue.”

Investigator must remain neutral

She says an investigator must be objective and remain neutral while recognizing the different forms discrimination and harassment can take.

“You must be aware of certain biases and stereotypes that might come up in different ways,” Shah says. “There is always new research and education regarding workplace investigations. The field is evolving. You must ensure that when conducting your investigations, you are using the appropriate language and not outdated terms.”

Mortimer Khoraych PC offers several options to employers faced with allegations of workplace discrimination, she says.

Typically, the firm is asked to investigate a claim and provide input, Shah explains.

“We do fact-finding,” she says. “We will determine whether we believe something happened on a balance of probabilities and whether it breached a workplace policy. We investigate individual complaints and systemic issues. Sometimes an investigation into an individual complaint brings systemic issues to light, which we would share with the employer.

Able to assess workplace climate

Shah says her firm also provides culture audits to assess the general climate within a workplace, rather than assessing a specific complaint or conflict. An audit is recommended if the employer:

• has received anonymous complaints about a workgroup, or several complaints related to the same issue or individual and has no clear facts to investigate;
• suspects interpersonal conflict at play within a group/department;
• has received a complaint, and/or a workplace investigation indicates that there is a larger issue at play within the group/department;
• conducts an employee satisfaction survey that shows a high degree of disengagement; or
• believes there is reason to assess the work environment to determine if it is healthy and if employees are working productively and safely.

“One of the benefits of a culture audit is that you don’t need a complainant and you don’t need a respondent,” Shah says. “People might be more forthcoming in providing information in these audits.”

The firm also offers workplace restoration and remediation services when it is clear that an interpersonal conflict between two or more co-workers is the root cause of a workplace issue.

“Sometimes people are not even cognizant that what they are doing is discrimination,” she adds. “However, under the law, you don’t need to have an intent to discriminate. In the end, an investigation helps improve the workplace culture and protect people’s rights.”

More from Mortimer Khoraych PC: 

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