“I find that the policy in place at the time was not an effective discrimination and harassment policy with respect to racial discrimination. To be a reasonable policy, it would minimally require a definition of discrimination.”
Having found the internal investigation seriously flawed in the matter of Cromwell v. Leon’s Furniture Limited(2014 CanLII 16399 (NS HRC)), NSHRC Chair, Kathryn Raymond, weighed in on the requirement for reasonable policies and awareness of discrimination in the workplace. In doing so, she referenced the corporate reasonableness criteria found in Laskowska v. Marineland of Canada Ltd. (2005), 205 HRTO 30 (CanLII). She asked whether there was an awareness of issues of discrimination and harassment in the workplace at the time of the incident. This awareness would include a suitable anti-discrimination/ harassment policy; proper complaint mechanism; and adequate training to management and employees.
Chair Raymond found that there were policies in place respecting sales, internal operations, safety, and sexual harassment but, those policies “were lacking sufficient detail and focus in terms of addressing discrimination”. The policy in place to address workplace harassment did not mention discrimination. In fact, the only mention of race in the policy was that it could be a ground upon which harassment could occur which Chair Raymond noted when she stated, “There is no definition of discrimination and no definition of harassment that pertains to race.”
Along with Leon’s lack of an anti-discrimination policy was the lack of a clear reporting mechanism in the event that an employee had been discriminated against or witnessed another employee being subjected to discrimination. There was a policy in place to address other legitimate employee ‘concerns’ but it did not specify the types of concerns that could arise. The absence of policies in place to address discrimination and harassment, apart from sexual harassment, may have meant that employees could only report sales and operational concerns. Just as there was no policy, there was also no process to follow in the event that concerns were raised.
NSHRC Chair Raymond also found a ‘marked lack of awareness’ of the issue of racism. This may have been because of Leon’s focus on sexual harassment and minimal education of its employees on issues of discrimination and harassment. The Chair found that while some managers may have discussed racism at managers’ meetings, managers were not speaking to their employees about racism nor were any employees trained in matters of racism.
Nowhere is the lack of training more evident than in the circumstances surrounding the ‘lynching’ comment made to Ms. Cromwell in front of other managers. Prior to beginning the investigation, the investigator received a written statement from another manager, present when the statement was made, confirming that the Complainant’s manager used the word ‘lynching’ before he began her performance review. The investigator followed up with this same witness manager during the investigation, but his questions “all but ignored or glossed over this primary and corroborated allegation of the Complainant”. Simply put, the witness manager was not asked specifically about the word lynching. She was asked about whether she had seen or heard anything racially discriminatory. It was only at the hearing when she was directly asked about the word ‘lynching’ that the manager stated that she did not think that ‘lynching’ was a racist comment. That is why she told the investigator that she had not seen or heard anything racist in nature. Given these facts, it is little wonder that Chair Raymond concluded, “[t]o the extent there was training of managers, it appears to not have been effective.”
The Cromwell case makes it clear that easy to understand and often communicated polices and procedures that deal with discrimination and discrimination free workplaces are a must. It is not enough to have policies in place without managers and employees alike receiving education on the content of those policies and how they impact upon the workplace. Training and education for employees and managers are also important because both employers and employees need to understand what constitutes violations of those policies and how to properly address any violation that occurs.