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Proving Racial Discrimination in The Workplace

February 5, 2021

The nature of racial discrimination in the workplace has shifted. While overt acts of racism still take place with disappointing frequency, it is now obvious to even the most reluctant employer that blatant racism is not acceptable.

Decreasing tolerance for overt acts of racial discrimination is a good thing, but racial discrimination has not gone away – it has gone incognito. The “subtle and pernicious” nature of racial discrimination has been acknowledged by BC’s Human Rights Tribunal, and means that proving racial discrimination has taken place remains difficult.

In order to establish discrimination in a human rights complaint, the complainant must prove:

(1)    They have a protected characteristic, such as gender or race;

(2)    They have experienced negative treatment or impact in their employment, such as a termination or missed promotion; and

(3)    The protected characteristic was a factor in the negative treatment or impact.

The third ground is the most difficult to establish.

In cases of racial discrimination, the complainant can rely on an inference to establish the connection between their race and the negative treatment. For example, in cases where a complainant alleges that their race was a in factor in not receiving a promotion, an inference can be established by showing that the complainant was qualified for the promotion, and the employer chose to promote someone not racialized who was not better qualified.

Of benefit to complainants are the following points accepted by the Tribunal:

·         A “minority knows what it feels like” when they have been racially discriminated against.

·         Racial stereotyping is often the result of unconscious beliefs, biases, and prejudices, and does not need to be intentional to be discriminatory.

·         Race does not need to be the only or main factor in the adverse impact.

·         In deciding whether to draw an inference, the Tribunal can take note of social and historical, context, prejudice, and stereotypes.

·         The Tribunal should be aware of myths and misconceptions relating to racial discrimination (for example, that racialized individuals play the “race card” to get what they want).

However, there is no presumption of discrimination resulting from the above factors. Any inference of racial discrimination must still be supported by the objective evidence, and established on a balance of probabilities (i.e. it is more likely than not to be true).

Once an inference is established, the employer can refute it by presenting evidence that there is a non-discriminatory explanation for the negative treatment. For example, that there is a legitimate reason for having passed over the complainant for a promotion, unrelated to their race.

In summary, complaints of racial discrimination in the workplace are generally legitimate, but remain difficult to prove.

A few steps employees can take to increase the likelihood of their complaint being successful include:

·         Raising concerns about racial discrimination:

o   Proactively;

o   In writing; and

o   To the right people.

·         Taking notes immediately after an incident occurs, including identifying what happened, who was there, and what specifically was said that was concerning.

·         Keeping your own record and information around your employment, including applications for promotion, alleged performance incidents, and interactions with colleagues or management.

·         Getting legal advice early from a human rights lawyer.

Related Cases

·         Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136

·         Kondolay v. Pyrotek Aerospace Ltd., 2020 BCHRT 208

·         Goondiwala v. BC Ferry Services and others, 2020 BCHRT 118

·         Brar v. Vancouver Police Board (No. 2), 2020 BCHRT 159