Tolentino v His Majesty the King in Right of Alberta (Alberta Justice and Solicitor General), 2023 AHRC 112 is an Alberta Human Rights Commission decision wherein an employee, the complainant, alleged she was discriminated against in the workplace on the grounds of race, colour, ancestry and place of origin. Commission member Doris Bonora concluded the complainant was not subjected to a poisoned work environment based on the evidence and submissions provided. This decision addresses racism in the workplace, the employer’s response to racism in the workplace and the application of section 7 of the Alberta Human Rights Act (the “Act”).
Facts
- The complainant is a unionized employee (“Employee”) of the Office of the Public Guardian and Trustee (“Employer”) in the role of Public Guardian Representative.
- The Employee identifies as a Black woman.
- In January 2021 at a video meeting, a coworker (“Coworker”) expressed generalized and discriminatory comments relating to “Black music” and used the N-word (the “Incident”).
- The Employee subsequently went on a medical leave through WCB in respect of the Incident.
- The Coworker was terminated, but subsequently there was a grievance and this was reduced to a 10-day suspension.
- Evidence was entered of government policies relating to discrimination and inappropriate comments.
- Further, the Employer had previously established employee groups to promote inclusion and diversity in the workplace, including support for employees who identify as Black.
- Several actions were taken by the Employer following the Incident. Some key events include:
- The Employee’s manager conducted an initial investigation.
- The Employee emailed the entire office expressing disappointment with the Incident, for which some employees expressed feeling bullied or violated.
- The Coworker filed a Respectful Workplace complaint against the Employee, which was not pursued.
- Another coworker filed a Respectful Workplace complaint against the Coworker.
- Respectful workplace and unconscious bias training was provided to employees.
- A second investigation took place examining management’s response to the Incident.
- Accommodations were put in place for the Employee to promote a supportive workplace.
- Evidence was reviewed of the testimony of several employees including the investigator.
Analysis / Conclusion
The Commissioner referred to the test for discrimination in the form of a poisoned work environment as per Moore v British Columbia (Education), 2012 SCC 61, noting that a poisoned work environment is the adverse impact experienced by the complainant. The three-part test for prima facie discrimination puts an onus on the complainant to establish as follows:
(a) She has a characteristic protected by the Act;
(b) She suffered adverse treatment or an adverse impact; and
(c) Her protected characteristic was a factor in the adverse treatment or impact
The Commissioner further refined the analysis in these circumstances as follows:
(a) Whether the complainant was subjected to a poisoned work environment as a result of the comments made in the workplace by her co-worker; and
(b) Whether, in failing to respond to the incident appropriately, the respondent discriminated against the complainant by subjecting her to a poisoned workplace as a condition of her employment.
The Employee’s submissions included, “where racist comments create a poisoned work environment that a complainant is required to endure as a condition of employment, such comments will amount to discrimination for which an employer will be held liable”, and “a poisoned work environment is assessed on a standard of whether a reasonable person would consider that a poisoned work environment exists, considering both a reasonable person in the complainant’s position as well as a reasonable person in the respondent’s position.”
The Commissioner concluded that while a single discriminatory incident may amount to a poisoned work environment, in this case, it did not and distinguished case law on this issue. The Commissioner stated that the comments made in the Incident were without question unacceptable, socially a taboo and racially charged. However, case authority supports a contextual assessment of the comments. In this case, the Employer acted immediately and continuously to address the Incident.
The Employer’s reaction to the Incident is a relevant consideration: “except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.”
The Commissioner concluded the stand-alone Incident did not meet the “egregious” threshold, and from an objective observer’s perspective, the Employer’s response was immediate and multi-faceted, “doing all it can to make change and correct the effects of the Incident created by one employee”. Further, the Employer in its actions did not condone or create a poisoned work environment. In short, the Commissioner dispensed with many of the Employee’s submissions and found the Employer’s overall conduct was supportive and sufficient.
In concluding, the Commissioner referenced Francis v BC Ministry of Justice (No. 3), 2019 BCHRT 136, on the deeper issue of racial discrimination in the workplace as follows:
Racial discrimination can occur through stereotyping and overt prejudice or in more subconscious, subtle and subversive ways.
…Practical experience and psychology both confirm that anyone can stereotype, even those who are well meaning and not overtly biased. While it may be somewhat natural for humans to engage in racial stereotyping it is nevertheless unacceptable.
At the individual level, racism may be expressed in an overt manner but also through everyday behaviour that involves many small events in the interaction between people. This is often described as “everyday racism” and is often very subtle in nature… [T]he cumulative effect of these everyday experiences is profound.
Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture and with an appropriate understanding of how racial discrimination takes place, may lead to an inference that racial discrimination was a factor in the treatment an individual received…
It is important to emphasize that racism in its more entrenched forms is often unconsciously applied and its operation is often unrecognized by even those practicing it. In addition, … while Canada has made much progress, racism remains a reality… Failing to recognize the complex, subtle and systemic nature of racism impedes effective action against it
My Take
The Employee experienced overt racial discrimination in the workplace and this experience resulted in mental distress and an extended medical leave. This improper conduct was by a single individual and the Employer’s reaction was quick and comprehensive. It would seem the Employee did not receive justice in this case. It is a reminder that even in clear cases of discrimination the analysis is contextual, and thus every case must be assessed by examining the actions and conduct, objectively, of the employee and the employer. In this case, the focus was on a poisoned work environment resulting from a rogue employee’s discriminatory comments. The Employer’s actions mitigated the potentially harmful consequences of the Incident and avoided creating a poisoned work environment. In other words, employers are not always liable for a rogue employee’s misconduct.
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