Canadian human rights law imposes both substantive and procedural duties on employers. In circumstances where an employee makes a discrimination complaint, an inadequate investigation by the employer can result in liability. This remains the case even if the employer does most things right.
A recent case illustrates the high standard to which Canadian employers are held in this regard. After a nine-day hearing, the Ontario Human Rights Tribunal ruled that while the employer had responded appropriately to some complaints of harassment, its failure properly to investigate all the allegations was a violation of the Ontario Human Rights Code. The employer was ordered to:
- revise its harassment policy;
- engage an expert to conduct human rights training; and
- pay damages of C$5,000.
The complainant in this case repeatedly brought forward complaints of harassment. He first complained to the director of human resources that co-worker A was yelling and swearing at him when he attempted to convey instructions from the executive chef. Co-worker A then complained that the complainant was making derogatory remarks about other employees' religions, cultural backgrounds and sexual orientation. He alleged that the complainant had asked, "Why are you talking to that Hindu?" and "Why are you talking to him? He's Jewish."
The human resources department conducted an investigation. The department concluded that both the complainant and co-worker A had acted inappropriately. The complainant was suspended for five days.
Before serving his suspension, the complainant complained that co-worker B had made offensive comments about his religion and that he was gay and a paedophile. The complainant refused to cooperate with the human resources department's investigation. Accordingly, the employer concluded that it was unable to substantiate his claims.
A couple of months later, the complainant complained to his boss that there was graffiti in the staff washroom containing offensive sexual innuendo about him. The complainant removed the graffiti, only to see it reappear in larger letters. The employer removed the graffiti a few months later. The employer denied that it had discriminated against the complainant. It said that it had conducted all investigations fairly and reasonably, and had taken steps to remove the graffiti once this was brought to its attention.
While the employer was partially successful in defending its handling of these matters, the tribunal ruled that the employer had failed properly to investigate the complainant's complaints about co-worker B. The human resources director improperly found that the allegations were unsubstantiated without questioning co-worker B, despite strong indications from other employees that an environment existed in which inappropriate comments were regularly made among employees.
The tribunal also found that the employer did not take sufficient steps to remove the graffiti; nor did it take preventative steps by posting notice of the consequences of such conduct.
The tribunal awarded the employee C$5,000 for injury to his dignity, feelings and self-respect. The tribunal also ordered that the employer retain an expert to provide human rights training and revise its harassment policy.
While investigating repeated complaints involving co-workers can be time intensive and complex, this case is a reminder of the importance of conducting proper investigations. Employers should ensure that:
- employees are aware of existing policies regarding harassment and discrimination;
- the complaints procedure is appropriate,
- employees are trained on harassment, discrimination and respect in the workplace;
- an appropriate, neutral investigator is chosen;
- each complaint is taken seriously and responded to promptly, and all allegations are investigated;
- all relevant facts are evaluated in reaching a reasonable resolution in the circumstances; and
- the complainant is informed of the outcome of the investigation.
For further information on this topic please contact Alix P Herber at Fasken Martineau DuMoulin LLP by telephone (+1 416 366 8381), fax (+1 416 364 7813) or email (email@example.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.
This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau and produced in conjunction with HRHero.com.