A reminder for employers: Unconscious bias in the workplace investigation process
Workplace discrimination can take many forms and may include situations where an employee is the target of unintentional discriminatory behaviour informed by unconscious bias. Unconscious bias refers to social stereotypes about groups of people that individuals form outside of their own conscious awareness.
While workplace investigations can play an important role in addressing discrimination, they also have the inadvertent potential to further discriminatory conduct through unconscious bias.
Earlier this year, the Ontario Divisional Court grappled, in part, with this issue in Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General), 2024 ONSC 1555 (“AMAPCEO”).
A summary of the decision
In this case, a Black female employee (the “grievor”) filed a complaint against a white colleague whom she alleged intentionally shoved her as they passed in a corridor at work.
The employer appointed an investigator to investigate the complaint. The investigator was a white male lawyer that worked for the employer in another department. The investigator received a written statement from the grievor and interviewed several witnesses. One such witness reported that the grievor had a “confrontational” tone. In generating a draft report, however, the investigator incorrectly stated that the witness had described the grievor’s tone as “threatening”. The investigator further found the grievor’s evidence to be “self-serving” and “calculated”, preferring that of the respondent, and concluded that the complaint was unsubstantiated.
The grievor’s union filed a grievance claiming that the investigation was unfair and biased. The union alleged that “the investigation discriminated against the grievor and was tainted by anti-Black racism because the investigator’s processes and conclusions bore the hallmarks of anti-Black stereotypes, prejudice, and implicit bias.” To advance this position, the union called on an expert witness to testify about how unconscious bias operates and to explain common anti-Black stereotypes.
While the arbitrator noted having “serious concerns about the Investigator’s processes and conclusions”, he ultimately concluded that the union had failed to establish a prima facie case that the investigator’s process or conclusions were tainted by anti-Black racism or unconscious bias. In this regard, the arbitrator opined that “while racism was one possible explanation for the biased and unfair way in which the investigator treated the grievor, it was not the dominant possibility.”
Upon judicial review, the court found that the arbitrator had incorrectly applied the test to assess prima facie discrimination under the Ontario Human Rights Code (the “Code”) and set aside his decision.
As the court confirmed, racism does not have to be the ‘dominant possibility’ for an investigation to be biased and unfair. Rather, to establish a prima facie case of discrimination, the complainant must show that they:
have a characteristic protected from discrimination;
experienced an adverse impact with respect to their employment; and
the protected characteristic was a factor in the adverse impact.
With respect to the third step of the test, it may be satisfied by an individual showing that race, or another Code-protected ground, played a role in the discriminatory investigation process. The Code-protected characteristic need not be the only, or the main, reason for the adverse impact.
The court also noted that the arbitrator erred by discounting the expert witness evidence and providing speculative explanations in the absence of evidence from the respondent for the investigator’s conduct.
Takeaway for employers
It is important for employers to be aware of the role that unconscious bias may play in their workplace. Taking steps to recognize this fact, and be mindful of it, can help foster more inclusive and supportive workplaces. It can also help inform interactions between staff and avoid misunderstanding and inadvertent discrimination. As such, the provision of training, among other things, may be worthwhile.
The AMAPCEO decision is also a useful reminder to ensure that workplace investigations are impartial and that both investigators, and decision-makers, base findings in evidence and steer clear of subjective opinion, biases, or speculation. It is likewise worthwhile for employers to consider whether it may make sense to retain a neutral third-party investigator with no prior connection to the workplace.
Finally, employers should keep in mind that discrimination will not always be overt – it may be unintended or indirect in nature. There is also no requirement that a Code-protected characteristic must be the “dominant” or primary factor in a discriminatory process; it must simply be “a factor.”
**with thanks to Safa Karim (law student at the University of Ottawa) for her contribution to this article.
This article was originally published on October 11, 2024 at First Reference Talks.
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.