Sometimes, clients who hire me are surprised (and relieved) to learn that a complaint of harassment or discrimination they received doesn’t need to be investigated. After I’ve interviewed the complainant, and the complainant hasn’t provided enough information to demonstrate that someone has violated the client’s policy or applicable legislation, the “investigation” concludes. There’s no need to interview anyone else.
The case is closed.

It’s something many other investigators do. Like much of the world of workplace investigations, there’s limited legal guidance compelling anyone to take this approach. It just makes sense. Now there’s a case to support it.

A Remote Health Centre and the Nurse-in-Charge

This case[1] stems from a grievance raised by the former Nurse-In-Charge (the Grievor) at the Deninu Kųę Health Centre in Fort Resolution, a community of 400 residents located directly south of Yellowknife on the shore of Great Slave Lake in the Northwest Territories.

The Health Centre faced staffing shortages, a reduction in its services, and a history of hostility from community residents who viewed it as a symbol of colonialism and an untrustworthy institution that failed to meet their healthcare needs. Residents readily expressed their frustrations to the Grievor. One example (among many) included a patient telling the Grievor, “It’s just excuses for not doing your f---- job because you are a f---- lazy b----.”

The Complaints about the Grievor

In November 2022, the Health Centre received letters from three community leaders demanding that they terminate the Grievor because of “allegations of racism, disrespect and lack of professional support.” There was only one example of the Grievor’s behaviour in these letters: the Grievor allegedly “told a patient…loudly and in an angry voice, ‘you’re not coming back here again because you’re going to die in Yellowknife from cancer.”

The Investigation

The employer promptly suspended the Grievor and hired two lawyers to investigate the allegations. About a month into her suspension, after interviewing 14 individuals, the lawyers provided the Grievor with a letter summarizing the allegations under investigation, and requested an interview with her.

Here are some of the allegations outlined in the lawyers’ letter to the Grievor:

Being racist towards the people living in the community of For Resolution who seek health services.

Not engaged or willing to work with community members or leadership.

Refusing to see community members or sending them home undiagnosed with medication (Tylenol).

No allegations included specific details about what the Grievor actually did, to whom, where, or when (a great example of how not to write a summary of allegations in a workplace investigation).

According to the Grievor, she “went in blind” to her interview with the lawyers. The evidence she heard during that interview was as vague as the allegations.

After interviewing the Grievor, the lawyers decided to interview another complainant: Richard Edjericon, the local MLA. Mr. Edjericon had written one of the three complaint letters that initiated the investigation (and it was later confirmed that he actually authored the two other letters submitted by community leaders). It is unclear why the lawyers interviewed another complainant after speaking with the Grievor, as this would likely lead to new allegations, require additional interviews with the Grievor, and prolong the investigation. And that’s exactly what happened.

Mr. Edjericon raised several new allegations and identified 21 other individuals with complaints against the Grievor. The employer then expanded the investigation's scope to include these additional complaints.

The lawyers interviewed the Grievor a second time. The lawyers asked her about even more allegations that were “vague, generalized, out-of-context incidents from years before that she had no way of providing a meaningful response to.”

The investigation lasted 81 days. The lawyers’ investigation report, which was 1052 pages long, stated that all complaints against the Grievor were unsubstantiated. But because the Grievor had been suspended for so long, community residents believed the Health Centre dismissed her for misconduct.

Instead of facing a community that wanted her fired (and thought she was), the Grievor took a new job in another community 750 km away and, eventually, left the region entirely.

The Key Takeaway from the Arbitrator’s Decision

The Arbitrator determined that the employer’s investigation was procedurally unfair, harmed the Grievor, and breached the employer’s obligations under its collective agreement and health and safety legislation.

The Arbitrator stated that the employer was obligated to “investigate” the community residents’ allegations against the Grievor, but they should not have undertaken a full investigation. Instead, the employer should have conducted a preliminary assessment of the complaints by interviewing residents and determining whether there was enough evidence of specific incidents indicating that the Grievor engaged in misconduct.

If you’re an employer and you receive a vague complaint, make sure your investigator performs a preliminary assessment before suspending someone and initiating a costly, time-consuming, rumour-spreading, morale-busting investigation.

Epilogue

The Grievor filed a complaint against Mr. Ejdericon, the MLA. The NWT Integrity Commissioner investigated her complaint and determined that Mr. Ejdericon violated the MLA Code of Conduct by "blindly and wilfully repeating unsubstantiated allegations" against the Grievor.

Mr. Ejdericon accepted the Integrity Commissioner’s findings but still does not accept the investigation's findings about the Grievor.

[1] Northwest Territories v Union of Northern Workers, 2025 CanLII 91062 (NT LA)

Put yourself in this situation: one day, out of the blue, your (white) supervisor questions whether the company’s affirmative action programs should exist, and wonders (aloud) whether the DEI initiatives unfairly exclude white people. She says this when you’re alone together - it’s just the two of you. And you can tell by the way she says it that she has zero idea how offensive she’s being. 

What do you do? Report her to a manager? File a formal complaint? Speak to her directly? What if she’s offended? What if you don’t say anything - are you complicit? 

To make things more complicated, you actually like your supervisor. You get along well, she gives helpful feedback and always listens to your suggestions. She’s even offered to give you a good reference if you ever want to apply for another job. 

This isn’t just some hypothetical – it’s a version of a case that’s been reported in several HR publications.

Inappropriate comments got a supervisor fired (but then things changed)

Here are the tricky details: 

When a supervisor was talking to one of her employees, the employee mentioned that she was Métis. The supervisor said that she should “play the Indian card” to get a better position because their employer wanted to promote Indigenous employees.

A month later, on two separate occasions, while talking to the employee and other colleagues, the supervisor said that she felt that discussions about the Black Lives Matter movement, as well as Black History Month, suggested that white lives do not matter. 

On another occasion, the supervisor told the employee that their company had spent a lot of money to convince a First Nations community that it should support one of the company’s projects. 

All of these incidents were deeply hurtful to the employee. 

The employee never spoke to the supervisor about how these comments affected her. Instead, she spoke to a manager about these incidents, and the manager suggested that she file a formal complaint. 

And so, she did. 

After that she worked from home as much as possible to avoid seeing the supervisor. She also threatened to resign.

The complaint was investigated. During the investigation, the supervisor was required to work from home to avoid any interactions between her and the employee. When the investigation was over, the supervisor was fired. 

The supervisor was obviously unhappy with this outcome. After 18 years of working for this employer, this was the first time she’d been disciplined. 

But more than anything, she couldn’t understand why the employee – someone who she was friendly with and had given a positive reference for a job application – never told her these comments were upsetting. The supervisor apologized, formally, in a letter. 

And now she was fired. 

But not for long. 

Because she was in a unionized position, the supervisor’s termination went to arbitration. The arbitrator overturned the employer’s decision to terminate her. Instead, she was suspended for one day and was required to do human rights training before returning to work.

Imagine what it must be like for the supervisor and employee to work together again. 

It’s probably not going to be smooth.

Also, consider the supervisor’s mandatory human rights training. How effective will it be? It’s quite possible it could foster resentment and not understanding. 

And how might the employee feel about her employer? Will she feel supported? Or does she feel like her employer did its best to protect its own reputation rather than doing its best to make her feel psychologically safe at work?

So…how did we get here?

Was this the outcome that the employee was hoping for when she raised a formal complaint? Probably not. Did she believe this was the only option for addressing this behaviour? Quite possibly. 

We know the employee spoke to a manager about her concerns. But we don’t know whether the manager gave her options – all we know is that the manager suggested that she file a complaint. 

This isn’t surprising. Managers are incentivized to tell employees to raise formal complaints in response to inappropriate comments. Raising a formal complaint effectively transfers all responsibility to HR and legal, and managers can’t get in trouble if it’s not their problem to solve. Also, managers are not usually equipped to handle complaints of inappropriate behaviour. They rarely receive extensive human rights or conflict resolution training. Managers also take on a great deal of risk if they try to take an informal approach to addressing the problem – what if it takes a long time to resolve? What if it only makes things worse? By referring it to HR (an easy thing to do) no one can say that they failed to follow a policy or neglected to respond to a serious complaint. In many circumstances, managers are also legally obligated to submit a formal complaint on behalf of the employee when the employee raises concerns about inappropriate behaviour, even if the employee does not wish to do so.

Telling employees to make a formal complaint makes things easier for managers. 

But how does it affect employees? 

Even though managers usually offer one way to handle this type of issue, there’s certainly no single way to deal with inappropriate behaviour at work. Employees need to understand how they feel – and what all their options are – before taking action. But where to turn? Ideally, a confidential conversation with someone outside of your workplace who is trustworthy, knows about these types of issues, and can help you make an informed decision about which approach makes the most sense for you. 

If your workplace has Canary, that’s exactly what you’ll get.

Canary gives employees options

Canary gives employees the chance to figure out how to resolve their concerns about inappropriate behaviour at work – to take stock of their options and get the support they need to figure out what to do. 

Employees can have confidential, off-the-record conversations with a Canary Advisor – a neutral third-party who can guide them through their workplace policies to understand what their options are. Do they want to continue working with this person? Do they want to go through an investigation process? Or do they want tools to address the behaviour on their own? They even have the option of raising their concerns anonymously.

Inappropriate behaviour happens all the time in workplaces and there are many ways to address it. Employees need to decide how to address that behaviour in a way that is effective and makes sense for them, instead of dealing with all concerns through a formal complaint process. As we can see from the above case, formal complaints don’t always give people what they want. Sometimes, they can actually do the opposite. There is no one-size-fits-all approach for dealing with inappropriate behaviour in the workplace. 

With Canary, employees have a safe and confidential resource to manage problems on their own, or bring attention to problems when they need their company’s help. And most importantly, Canary gives your employees the support they need, at the time they need it most. 

There are two parts to this!

Part I looks at the latest research on the effectiveness of Anti-Harassment training in workplaces.

Part II examines how the BC Human Rights Tribunal dismisses complaints of sexual harassment.

Part I: Is Anti-Harassment Training Effective? Try Something Different

Since 2017, I’ve conducted training on identifying and addressing workplace harassment. Participants mostly seemed to enjoy the training and the conversations that it generated, but has it helped with promoting diversity in those workplaces?

Getting to Diversity: what works and what doesn’t, by sociologists Frank Dobbin and Alexandra Kalev, summarizes the latest academic research on the impact of anti-harassment training on diversity and its overall effectiveness. In addition to conducting interviews with human resources managers and diversity experts, Dobbins and Kalev looked at how various diversity and inclusion initiatives at over 800 American companies affected the proportion of diverse people in management positions. 

According to their research, providing anti-harassment training to employees decreased the diversity of companies’ management. Specifically, it led to a reduction of white women, Black women and Asian-American men in management positions. 

Dobbins and Kalev’s research suggests that anti-harassment training is ineffective when it is overly “legalistic”. When anti-harassment training emphasizes liability risks for the employer or compels participants to identify specific behaviours that meet the legal definition of harassment or discrimination or focus on their biases, participants often feel resentful and disengage. This type of anti-harassment training makes participants feel like they are the problem and that they need to change their biases and behaviours to stop themselves from doing something wrong. Participants also feel like their employer is training them to protect itself against legal and reputational harm, not because it wants to create a positive work environment. 

😅 

It was helpful to hear this perspective from these researchers, but it wasn’t the first time I had heard it. During one of my more memorable anti-harassment training sessions, some participants told me that it was unfair that they had to attend my training session when their concerns about harassment by members of management, leadership, and their clientele had not been addressed. They said that they felt like they were being blamed for the harassment that they experienced.

Dobbins and Kalev claim that people are more engaged when anti-harassment training focuses less on participants’ biases - how they are the problem - and more on how they can actively solve the problem of workplace harassment. They point to two types of training that do this - cultural inclusion and bystander intervention training. These two types of training provide participants with instruction on how to create workplaces that value inclusion and respect, and how to intervene when someone behaves in a way that is contrary to those values. Their research found that when these types of training are delivered to managers, it increases diversity in management.

It’s relatively easy to summarize legal rules and respectful workplace policies in a two-hour training session. That kind of training can help raise awareness about workplace harassment and teach participants about the policies that govern their behaviour. Talking about ways to ensure people feel included, and doing exercises to practice those skills, requires more time, discussion, and engagement. In my experience, this kind of training is often seen as something “extra”. But according to Dobbins and Kalev, it’s essential. 

So I’ve created a course specifically for managers that focuses on cultural inclusion and bystander intervention, and reviews issues related to harassment in the context of managing interpersonal conflict. It’s designed as a “train-the-trainer” course to give managers the tools they need to have open conversations with their direct reports about these topics. This helps managers weave these concepts into their day-to-day work rather than compel their direct reports to attend a one-time anti-harassment training session where they might feel disengaged and resentful. 

The course consists of four 2-hour training sessions to be delivered over a 4-6 month period. By conducting the course over an extended period of time, managers can document their progress through ongoing surveys, which are part of the course curriculum, and reinforce what they learn. 

Each session will cover one of the following topics: 

1. Establishing Workplace Values

2. Cultural Dexterity

3. Managing Interpersonal Conflict

4. Bystander Intervention 

Yes, it’s a bigger investment of time and resources. But in my experience, managers often lack experience with these topics. Even if they don’t lack experience, they usually appreciate more guidance on them. More importantly, if research suggests a better approach to improving workplaces, it’s probably time to do something different.

Part II: How the BC Human Rights Tribunal Dismisses Complaints of Sexual Harassment

Many decisions from the BC Human Rights Tribunal involve applications to dismiss complaints of human rights violations. For these applications, Tribunal members have to parse through complaints and determine whether the allegations contained in those complaints, assuming that they occurred, demonstrate a potential violation of the BC Human Rights Code. 

These decisions are helpful resources when clients ask me to do a “threshold assessment” to determine whether a full-blown investigation into a complaint is necessary. If the allegations contained in a complaint, assuming that they occurred, do not amount to a violation of legislation or policy, an investigation may not be necessary. 

Here are two similar complaints of sexual harassment before the BC Human Rights Tribunal where Tribunal members came to different conclusions about whether the behaviour alleged could amount to sexual harassment. These cases shed light on what is needed to formulate a complaint of sexual harassment and whether a superior can express a romantic interest in a subordinate in a workplace (as I’ve said in my training sessions - best to not do it).

Case 1: Byelkova v. Fraser Health Authority and another, 2019 BCHRT 118

In this case, the Applicant alleged that her superior made sexual advances towards her and initiated a disciplinary investigation against her as retaliation for rebuffing these advances.

Here are the sexual advances that the Applicant identified:

• In December 2016, at the staff holiday party, the superior asked the Applicant, “Isn’t your mister supposed to get you a drink?” After she told him that there was no “Mister”, he insisted on paying for her drink.

• On various occasions, the superior would make a point of stopping at the Applicant’s work station to chat. He would sometimes ask if she had any plans after work or if she had already taken a break. One time, he suggested she could come with him to Tim Hortons on her break and, when she said she was too busy, he offered to bring her a coffee.

• In June 2017, the Applicant was jogging when her superior pulled up alongside her in his car. He complimented her on her looks and said that most people of her Slavic background were beautiful. He also told her that she reminded him of a particular Bollywood actress and then asked her to hang out with him after work. She told him that he was making her feel uncomfortable and reminded him that he was married and that she was in a new relationship. He responded to this by punching something in his car and then speeding off. 

Interestingly, the Tribunal member determined that the Applicant was not arguing that these alleged sexual advances themselves constituted sexual harassment; rather, the Tribunal member believed that the Applicant brought up these events only to convey that the disciplinary investigation that occurred afterwards was retaliatory because the Applicant rebuffed these sexual advances. As a result, the Tribunal member did not consider whether these incidents, on their own, constituted sexual harassment. 

It seems as though this determination was based on the following paragraph in the Applicant’s submissions before the Tribunal:

I will elaborate that asking a female (or a male, for that matter) out on a date does not constitute a sexual harassment; there is nothing abnormal about such action. In fact, there were other male colleagues who have openly asked me out.1

The BC Supreme Court reviewed this decision and found that, despite what the Applicant stated above, the Tribunal member’s failure to determine whether these incidents amounted to sexual harassment was patently unreasonable.2 When the matter was sent back to the BC Human Rights Tribunal for reconsideration, the same Tribunal member found that the events described above could amount to sexual harassment.3

Case 2: Lin v. Starbucks Coffee Company (Canada) and others, 2022 BCHRT 87

In this case, the Applicant alleged that her superior made sexual advances towards her and that she was not considered for a management position even though she was qualified for the role.

Here are the sexual advances that the Applicant identified:

• From December 2018 to March 2019, the superior touched the Applicant’s hands frequently while pretending it was an accident and on one occasion touched her waist. On one occasion she said to him, “You are a guy, go do what guys should be doing, instead of touching touching,” and he laughed.

• On December 28, 2018, the Applicant’s superior told her that he “has the charm” and held her hand “while gazing at [her] with a mysterious and proud smile.”

• On March 12, 2019, the Applicant’s superior told her that she had “a presence of a sexual deviant” and tried to shake her hand. 

• On March 18, 2019, after the Applicant told her superior that she only wanted to talk about work, he said that he liked her and felt a “synergy” between them and that he wanted to develop a relationship with her.

• On March 19, 2019, while the Applicant was with her superior at a bus station at the end of a closing shift, he asked her how she felt, and when she responded that she felt nothing, he said, “I feel excited,” then tried to shake her hand.

• On March 20, 2019, the Applicant’s superior tried to chat with her about topics that were unrelated to their work while she was on a break.

• On March 27, 2019, when the Applicant said, “I’d better find a Jewish man for the purpose of living a quality life while doing better business,” the Applicant’s superior responded, “You need to find a Jewish man just like me, a Capricorn.”

• On April 7 or 8, 2019, after the Applicant left a meeting, her superior smiled at her and offered to make her a drink.

The Tribunal member dismissed this complaint for the following reasons:

• Not each and every one of the above allegations could reasonably be considered sexual. Specifically, the Tribunal member said that “chatting” about unspecified non-work matters, shaking a hand, expressing a feeling of “synergy”, suggesting that the superior was “feeling excited”, and offering to make a drink for the Applicant, were acts that were not necessarily sexual.

• There was not enough information about the context of each incident, including the ones related to inappropriate touching and the “sexual deviant” comment, for them to be taken seriously.

• Overall, these incidents, even if they occurred, would not have had a detrimental impact on the Applicant’s work environment.

It’s difficult to see how Case 1 demonstrates a possibility of sexual harassment and Case 2 doesn’t. Both contain sexual advances by a superior towards a subordinate. In Case 1 the superior asked the Applicant to hang out with him after work. In Case 2 the superior told the Applicant that she needed to find a Jewish man just like him in order to live a “quality life”.

To me, both cases contain enough information to suggest a potential violation of human rights legislation and should be investigated. Indeed, the employer in Case 2 conducted an internal investigation in which they likely obtained additional information about the context for the comments alleged, but the employer found that the complaint was unsubstantiated.4

If an investigation was to be done for Case 1, it would be helpful to have the Applicant explain why she thought it would be acceptable to have male colleagues ask her out (as she wrote in her submissions) but not this particular male colleague. The answer might be that she found it uncomfortable to be asked out by her superior because he was her superior, but it would be better to hear her answer than assume what it might be.

My guess as to why these cases were decided differently? The Applicant in Case 1 (eventually) had legal counsel. The Applicant in Case 2 did not. 

Since my last post (6 months ago!) I’ve had an extended vacation,1 done a variety of investigations, signed up clients for Canary and taught two day-long courses on workplace restoration and investigating discrimination in the workplace.2

I couldn’t stop thinking about one of the cases I cover in the investigating discrimination course. This case deals with a white investigator and arbitrator assessing complaints of racism - a common situation that raises the spectre of bias. I’ve summarized the case and my thoughts about it in this post. It’s a bit long, but hopefully it’s worth your while.

The struggle to make the call:

is an unfair investigation by a white investigator also racist?

It’s rare to read a case that thoroughly dissects a workplace investigation. It’s even rarer to read a case that questions whether a white investigator has an unconscious racial bias.

This one does both.

The Incident

This case (a grievance arbitration) was based on a single interaction between two colleagues – the Grievor and “Ms. X”. On October 16, 2017, around 3:10pm, the Grievor walked down a corridor in her office towards a fax machine. Ms. X walked towards the fax machine from the opposite direction. In the slightly narrowed space in the corridor near the fax machine, Ms. X and the Grievor made physical contact with each other. According to the Grievor, Ms. X physically assaulted her by lifting her hands and pushing the Grievor with enough force that she almost fell. According to Ms. X, they merely bumped into each other. No one witnessed the moment when they made physical contact with each other.

The Investigation

Before the arbitration, the Grievor’s employer investigated this incident. Over the course of two months, an “experienced lawyer” (not to be conflated with an experienced investigator) interviewed various employees and produced multiple drafts of a report outlining his conclusions, which were judiciously reviewed by his colleagues. Ultimately, the investigator concluded that Ms. X’s version of the incident – that she and the Grievor gently bumped into each other when they made physical contact – was most likely what happened because he found her to be more credible than the Grievor.

The Arbitration

Neither the Grievor nor Ms. X provided a completely consistent account of this incident. There were slight variations in how they described their physical contact, their location in the office hallway, the speed at which they were walking before they made physical contact and their conversations after they made physical contact. Due to these inconsistencies, the Arbitrator found neither the Grievor nor Ms. X to be credible and declined to make a finding about the nature of their physical altercation. He simply found that there was neither an intentional push nor an inadvertent bump when Ms. X and the Grievor made physical contact with each other.

Investigation Deemed Unfair

At the arbitration, the Grievor argued that her employer’s investigation into this incident was unfair. The Arbitrator agreed, citing several flaws in the investigation:

• The investigator concluded, without canvassing this conclusion with the Grievor, that the Grievor’s complaint seemed “calculated to lead to...requested relief, including compensation”

• The investigator did not give weight to evidence that the Grievor told colleagues that she had been pushed by Ms. X immediately after the incident occurred

• The investigator relied on Ms. X’s diagram of the layout of the office where the incident occurred, which was inaccurate, and neither provided this diagram to the Grievor nor asked the Grievor or any other witness to draw such a diagram

• The investigator did not rely on witness evidence about a conversation between the Grievor and Ms. X that occurred after this incident, which contradicted Ms. X’s evidence of what she said to the Grievor during this conversation

• The investigator found Ms. X to be more credible in part because she admitted to swearing under her breath after this incident, which made her seem unappealing, but the Arbitrator determined that such conduct was not unappealing since it would not be something Ms. X would be disciplined for, therefore it did not support her credibility

• The investigator said that the Grievor did not explain why Ms. X would physically assault her, even though the Grievor provided evidence that she and Ms. X had a poor working relationship when they worked together two years before the incident

By conducting an unfair investigation, the employer failed to fulfill its legal obligation to “take every precaution reasonable in the circumstances” to protect the Grievor’s health and safety.3

No Unconscious Racial Bias in the Investigation

The Arbitrator rejected the Grievor’s argument that the investigator – a white man – had an unconscious racial bias that negatively affected his perception of the Grievor – a Black woman.

There were two key examples that suggested the investigator had an unconscious racial bias. First, in an initial draft of the investigation report, the investigator used the word “threatening” to describe the Grievor’s behaviour towards Ms. X after the incident of physical contact. This description was based on evidence from a witness. However, the witness actually described the Grievor as “loud” and “confrontational”, not “threatening”. Second, the investigator drew unfavourable conclusions about the Grievor – that she fabricated her complaint to obtain financial compensation – without sufficient evidence.

The Arbitrator acknowledged that these examples suggested that the investigator was influenced by negative stereotypes of Black people. But he would not go so far as saying that the investigator held an unconscious racial bias that affected his investigation. He determined: “Race is one of the possibilities for the way in which the Investigator conducted his investigation and reached his conclusions, but it is not the dominant possibility.”

The Struggle to find Unconscious Racial Bias

The Arbitrator said that it was particularly challenging for him to decide whether the investigator had an unconscious racial bias (“This is an incredibly difficult assessment to make”) and required a painstaking review of the evidence before him (“This conclusion is not made lightly”). He explained that he “struggled deeply with” this decision because he had to “ascertain what was in [the investigator’s] subconscious.”

I can’t ascertain what was happening in the Arbitrator’s subconscious when he wrote this, but I thought that it seemed both disingenuous and legally inaccurate. There is no legal requirement to ascertain what was in a person’s subconscious to make a finding that they engaged in an unintentional form of discrimination. The Arbitrator was required to focus on the effect of the investigator’s conduct on the Grievor; not the investigator’s subconscious or conscious intent to discriminate.4 And even if the Arbitrator was required to ascertain the investigator’s subconscious, he had no trouble doing so. The Arbitrator noted (without expressing any difficulty) that the investigation was unfair because, “It is likely the Investigator thought from the outset that the Grievor’s claim was improbable,” and the Investigator was “affected by his perceptions of the unlikelihood of [the Grievor’s complaint].” The Arbitrator easily concluded that the investigator subconsciously prejudged the Grievor’s complaint. So why did the Arbitrator struggle with the idea that the investigator’s prejudice was affected by the Grievor’s race?

Before enumerating the flaws in the investigation, the Arbitrator stated that the investigation did not meet “certain standards”, but he did not cite a single legal authority that elucidates these “certain standards”. This suggests that he identified these flaws by imagining himself as the investigator and considering how he would have conducted the investigation differently to meet these “certain standards”. As an Arbitrator who also conducts workplace investigations, his personal experience allowed him to easily inhabit the perspective of the investigator and determine that the investigator prejudged the Grievor’s complaint, which led to an unfair investigation. But deciding that the investigation was tainted by racism required the (white) Arbitrator to imagine the nature and impact of this investigation from the perspective of a Black person who participated in the investigation. Perhaps the Arbitrator’s struggle to determine whether the investigator had an unconscious racial bias arose from his (subconscious) discomfort with making a decision that was unmoored from his personal experience.

I am intimately familiar with this struggle.5 If I investigate a complaint raised by a Black person who alleges that they have experienced discrimination, the law requires me to determine whether this is reasonable. I must ask myself how a “reasonable” Black person, in the circumstances described in the complaint, might feel. The struggle is whether I, as a white person, can imagine who this reasonable Black person is and what they might feel like in the unique circumstances of the complaint.

It’s a struggle that many white people have not encountered until recently. The Black Lives Matter protests from the summer of 2020 and the ensuing explosion of diversity and anti-racism training compelled everyone to ask themselves how Black people feel in their workplaces, schools, and communities. For many, including those who readily condemn discrimination, this required a great imaginative leap – a struggle to imagine another perspective.

When we lack the curiosity, courage, or personal experience to overcome this struggle – to take this imaginative leap – we may miss moments of racism and quietly reinforce the pervasive “system” of systemic discrimination. When investigators or arbitrators experience this struggle, they need to explain it clearly. Only then can others recognize this struggle and learn how to overcome it.

Cybulsky v. Hamilton Health Sciences, 2021 HRTO 213: a reminder of the duty to investigate

This recent case from the Human Rights Tribunal of Ontario illustrates how subtle forms of discrimination persist in homogeneous, male-dominated work environments. It’s also a helpful case for employment lawyers, investigators and HR professionals because it reminds us of how an employer’s duty to investigate gets triggered. 

The applicant in this case was a cardiac surgeon who had worked at Hamilton Health Sciences (“HHS”) since the early 1990s. From 2009 to 2016, she was the Head of the HHS Cardiac Surgery Service. During this time, she was the only female head of a cardiac surgery service in Canada. 

She was also the only female cardiac surgeon on her team. To convey how the applicant was isolated from her colleagues because of her gender, the Tribunal’s decision highlighted evidence that she was excluded from annual ski trips for members of the Cardiac Surgery Service - only men were invited.

Due to some “grumblings” coming from the Cardiac Surgery Service while it was headed by the applicant, a senior administrator asked a colleague to conduct a “review” to figure out what (or who) was causing problems. The applicant’s colleagues were interviewed as part of this review and some of them raised concerns about her leadership. The applicant was also interviewed.

Here’s an excerpt from the applicant’s interview:

One of the things I’ve learned in some of my reading is leadership programming is a challenge because leadership is a domain that has male traits: assertiveness, directness, problem solving, task oriented. Those are all things that go along with a male domain, and for a woman, they’re supposed to be nurturing and nice and fuzzy…

[There] is social science research that shows that women that exert those traits are seen as incompetent and lacking authority. And it is also shown …that successful women leaders are often not liked, and both by women and men, or are judged more harshly for the way they behave even though they are equally competent because it is not just anticipated. 

So I am in a domain of now seven [male] cardiac surgeons. All of the interventional cardiologists are male. All but one of the ICU west coordinators are male. I have a few more colleagues in anaesthesia who are female, but it is a male world where accepting a woman as a leader is just psychologically difficult and it’s not anything personal to do with cardiac surgery. I’m probably as guilty of it myself towards other women leaders and, to be viewed as someone that has traits that I think I have, can work against me.

This review culminated with a written report that included the information provided by the interviewees as well as several recommendations.

The report did not address the applicant’s concerns about gender discrimination.

After the review was completed, a new Surgeon-in-Chief was appointed to HHS. He wanted to help improve the Cardiac Surgery Service and address the issues that were raised in the review, including those regarding the applicant’s leadership. But during his first year in this role he never had a one-on-one meeting with the applicant to discuss her leadership. 

At the end of his first year, the Surgeon-in-Chief decided to solicit expressions of interest for the applicant’s role as Head of the HHS Cardiac Surgery Service. He made this decision partly because of the shortcomings in the applicant’s leadership abilities that were outlined in the review. 

After he made this decision, the applicant wrote an email to the HHS’ Human Rights and Inclusion Specialist in which she argued that the Surgeon-in-Chief failed to support her as a leader.

Near the end of her email, she wrote: 

I have read about challenges in leadership for women and I believe the bias against female leaders is accurate and has played a role for what has been happening in my case. 

There was some discussion with the Human Rights and Inclusion Specialist about conducting an additional review of the Cardiac Surgery Service and a mediation between the applicant and the Surgeon-in-Chief, but nothing happened. 

Based on this evidence, the Tribunal drew the following conclusions: 

[The human rights and inclusion specialist] never made any further inquiry with the applicant about the potential bias and barriers she experienced as a female leader in a male-dominated context.

[...]

[This] failure to consult with the applicant and investigate the gender bias and discrimination that the applicant raised in the context of her situation adversely impacted the applicant’s dignity and self-worth as a woman resulting once again in a breach of her Code rights.

The succinct allegation contained in the applicant’s email triggered the employer’s duty to investigate. But there was no investigation, no review, no mediation and no consultation. Her complaint was simply not addressed.

This case is a not-so-gentle reminder that when an employee raises these types of concerns - a supervisor engaging in acts of gender-based discrimination - something must be done.

This is where I write about my practice and recent legal cases that deal with harassment, discrimination and investigations :)

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