'We see managers who don't manage, who don't take that step of putting a stop to it': lawyer
A recent Human Rights Tribunal of Alberta (the Tribunal) decision can serve as a template for employers when it comes to the right way to respond to allegations of workplace discrimination.
Daniel Weber, partner at McLennan Ross in Edmonton, said the case and the decision are rare examples of the perfect way for employers to respond to discrimination charges in the workplace.
“This case got me excited, for the simple fact that it puts into practice what we preach, in terms of being a good employer and being responsive,” Weber told HRD. “This is the ‘do's’ of what to do, and it's nice to be able to point a case rather than talking about it in theory, or cobbling together a bunch of cases – all the good work is in this one case.”
Allegations of poisoned workplace
The case saw the complainant, Charlene Tolentino, allege to the Alberta Human Rights Commission (AHRC) that her employer, the Office of the Public Guardian and Trustee (OGPT), subjected her to a poisoned workplace due to racialized comments from a co-worker. She claimed the discrimination was a violation of section 7 of the Alberta Human Rights Act on the grounds of race, colour, ancestry, and place of origin.
The Tribunal dismissed the claimant’s discrimination allegation because the employer responded with immediate steps to manage the situation, then followed up with investigation and action.
“The employer was applauded for having policies in place, and then following those policies, and then putting into practice those policies,” Weber said. “We often see times where there's a policy in place, it hasn't been updated, or there's a policy in place and it's not followed correctly, or it's not followed at all.”
Immediate action after discrimination incidents is key
The complaint in question stemmed from an informal conversation among most of the OGPT staff before a scheduled video meeting. According to the decision document, one staff member, Tracy Johnson, went on a “rant”, using racialized comments about “Black music lyrics”, “Black men” and full use of the “N-word”. She was told in the chat function of the video call to cease, but she did not.
Tolentino was the only staff member at the time who identified as Black. Immediately following the incident, she went on medical leave and made a claim to the Workers’ Compensation Board of Alberta (WCB). That claim was accepted and Tolentino has been on paid leave since then.
Johnson was initially fired, but contested the termination and was eventually given ten days’ suspension.
Immediate response by manager was key
So what did the employer do right? First, the manager present immediately stopped the offensive conversation and communicated clearly on the spot that such language was not acceptable in their workplace. She told the staff at the meeting that race and ethnicity were not subject for casual conversation, and that she did not condone disrespectful or inappropriate language during staff meetings.
In addition, Tolentino was given the remainder of the day off, and immediately following the meeting, the manager reached out to her to apologize and assert that the incident would not be taken lightly, and that the language would not be used again.
The manager emailed the Edmonton office staff directing them to cease all communication about the incident, including social media posts, stating that “the investigation would take time, but she was confident the investigation would result in a solution to the situation; she also said if any employee needed, or wished, to discuss the incident or its consequences, they could reach out to her or either of the Assistant Public Guardians,” according to the Tribunal documents.
Managers must respond to discrimination events
While this particular manager responded in the best possible manner, not all managers are confident in situations of conflict resolution, Weber said. However, that does not mean that they should not respond.
“Oftentimes we see managers who don't manage, who don't take that step of putting a stop to it, and so it's incumbent on employees,” he said. “You have a responsibility under occupational health and safety legislation, and under human rights legislation if there’s discrimination, to put a stop to it, to say that's inappropriate.
“You can't turn a blind eye, you have to act. And if you don't, your failure to act can cause liability.”
If a manager or supervisor does not have the confidence, knowledge or experience to handle a contravention head-on, there is still a responsibility to address the issue, and this means “passing the baton” to either HR or labour relations, said Weber.
“If it's a situation where the person doesn't feel comfortable or doesn't feel equipped, or doesn't know if it's actually a contravention, staying silent isn't enough,” he said. “You need to escalate it to those people, you need to use your supports around you to get that information or to pass the baton.”
Follow up action prevented litigation in discrimination charge
Following the initial event, the Tribunal noted that the employer took several steps that essentially proved that a poisoned work environment was not present.
Those included:
- Conducting two separate investigations and interviewing all staff who were involved in the incident
- Communicating via email with all staff acknowledging the impact of the incident and how the employer was going to respond
- Letting staff know that diversity training was going to be implemented
- Communicating with human resources about diversity training options
- Implementing mandatory respectful workplace training and unconscious bias training
- Providing a counsellor to speak to staff one-on-one
- Extending the complainant’s counselling benefits beyond maximum thresholds
- Permitting the complainant to work from home
- Other accommodations specific to the complainant such as assigning her to work with people she felt were supportive and accepting a request for a different supervisor
“We can't go back in time and stop the misconduct, stop the discrimination, but we can implement strategies to limit liability,” Weber said, acknowledging that not all employers have the resources for this level of accommodation and investigation.
But doing at least the “bare minimum” of establishing the facts of what happened, if a contravention occurred, and following up with policies is recommended – basically, “do something about it, and act quickly,” he said.
“When you have a contravention and you don't address it immediately, that's the biggest mistake, because then it goes on and the relationship deteriorates,” said Weber.
“The hurt, the pain, the suffering that is felt at the outset continues to grow … you also have an increase in quantity of damages because you haven't fixed the problem, you've let it persist, and then you have general damages and the pecuniary damages that flow from that.”