Canadian Employment Law Today

Canadian HR Reporter, 2020 4 The impact of Black Lives Matter on employment-related human rights claims SINCE THE 2000s, there has been an in- crease in human rights awareness and, con- sequently, in applications made to human rights tribunals. This increase has occurred on both the consumer level as well as in re- lation to discrimination at the workplace. In 2017, the #MeToo movement took the corporate culture by storm with a num- ber of companies trying to reduce, if not eliminate, sexual harassment and gender- based discrimination. In May 2020, the death of George Floyd and other Black people in the U.S. led to widespread discussions about the Black Lives Matter movement and racism, from its application to treatment of Black con - sumers to their treatment and opportuni- ties in the workplace. This concern has touched businesses and employers of all sizes, from small to enterprise-level companies. Individuals are becoming increasingly aware that racism is still alive and well in our society, whether in - tentional or not. Employees who may have been or are still being subject to discrimina- tion based on racism are paying closer at- tention and are beginning to reflect on their own experiences at their workplace. This has forced many companies to con- sider the potential imbedded culture of discrimination lurking in their own work- places. Business owners that mean well have to act quickly to avoid being taken by the whirlwind of seeming apathy when it comes to racism. Proactive work is more important than ever, but it is certainly not an insurance policy. Employers must simply take a long hard look at their internal processes and prac - tices and see where they can do better. Increase in human rights-related questions, consultations Employees, like everyone, are influenced to an extent by the news. This means, as a law firm, we receive more inquiries about a cer- tain topic when that issue becomes more relevant in the news. The issue of racism is no different. As such, many more people began questioning whether their negative treatment at work was motivated, at least in part, by negative attitudes toward race. After all, that is all that a human rights tri - bunal would need to render a finding of racial discrimination. Many of the queries are perfectly legiti- mate. Some, however, are not. This does not preclude the employer from being sued or complained against when it comes to human rights issues. Employers are put under scrutiny from the moment an applicant enters an inter - view room. Human resources profession- als and business owners are encouraged to craft interview questions that avoid the po- tential of being seen to be discriminatory. By determining the list of questions to be asked at the interview in advance, em- ployers and HR professionals are better positioned to ensure the questions being asked are objective and do not inadver- tently refer to issues protected grounds un- der provincial human rights legislation or the Canadian Human Rights Act for federal employees. This includes questions about age, family obligations, disability issues and sexual orientation, among other issues viewed to be personal. While personal questions could be in - tended as nothing other than introductory sessions without judgment to be stemming from them, their use is extremely danger- ous. It is not enough to avoid being preju- dicial, it is incumbent on HR professionals and business owners not to put themselves in a position to have to justify such ques- tions or hiring decisions. If a business has to justify its hiring deci- sion in front of a tribunal, it is already too late — and it has been taken on an expen- sive legal ride it undoubtedly wishes it did not have to go on. Increase in internal complaints If businesses are lucky, they may have the opportunity to address a complaint in - ternally between their own managers and staff before issues get to a court or a tri- bunal. In those cases, the employers are already in hot water and must do everything it takes to correct any misconceived notion of racism. If there is merit to the com - plaint, discriminatory activities must be corrected where they exist and the employ- ers should develop systems to fully avoid this in the future. These complaints often start with a form, call or email to the HR department. The most advisable step at that time is to engage in a proper investigation by a neu - tral third-party investigator or a law firm that focuses on the area. These investigations allow for a true run- down of potential risks that may have been missed or ignored as well as an opportu- nity to correct them. Not only must com- panies correct deficiencies in their human rights and equitable practices, but they must make sure to re-instill the confidence of employees in the leadership that the hu- man rights of their staff matter. Increase in human rights applications Some companies lack internal structures that allow employees to address their con- cerns internally. Worse, some do not inspire the confidence of employees that their issues will be appropriately addressed, either due to a lack of an established complaint pro- cess or simply the lack of enforceability of a policy. As a result, employees go straight to a lawyer or a tribunal to plead their case. The process at a human rights tribunal can be long and arduous. Like all litigation matters, it can also be costly. If employees proceed to the Ontario Human Rights Tri - bunal, for example, they have the oppor- tunity to go through the various stages of a human rights application and force the employer to respond, whether they have legitimate concerns or not. In the court system, litigants are en - couraged to settle their matters by court- sanctioned cost consequences if a party has CASE IN POINT: HUMAN RIGHTS Social justice issues have come to the forefront over the past few years, first with sexual harassment and lately awareness of racism has taken centre stage. As a result, workplaces are coming under more scrutiny on issues of human rights and equality. Employment lawyer Christopher Achkar discusses the importance of anti-discrimination policies and the liability employers could face without good ones. BACKGROUND BY CHRISTOPHER ACHKAR Social movements are putting employers under pressure to make sure they're equipped to handle workplace human rights issues Many companies have had to consider the potential imbedded culture of discrimination lurking in their own workplaces.

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