Canadian HR Reporter

C O L U M N S 32 www.hrreporter.com T O U G H E S T H R Q U E S T I O N Have a particularly difficult or interesting question? Why not share it with us? Email: sarah.dobson@keymedia.com Have a question? CAN DISCRIMINATION ARISE FROM JUST ONE INCIDENT? Q Can workplace discrimination arise from a single incident? A The B.C. Human Rights Tribunal (BCHRT) has said that while a single incident can violate the province's Human Rights Code, there is "some conduct which, while undesirable, will fall below the threshold of discrimination": See the 2017 decision Hawknes v. Vancouver Public Library (No. 2). In determining if a single incident constitutes discrimination, the BCHRT will look at factors such as "the egregiousness or virulence of the comment, the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against" (the 2003 decision Pardo v. School District No. 43). Another factor that is often considered is the impact of the incident on the employee. Single incidents that fall below the threshold of discrimination commonly involve sexual harassment. For instance, in the 2018 decision Pavan v. Michelin Canada, the BCHRT dismissed a claim stemming from an offensive username displayed on a large screen by a colleague. The employee experienced discomfort linked to her sex, but the situation was remedied immediately and the single incident wasn't enough to constitute discrimination. In the 2020 decision The Employee v. The University and another (No. 2), a university employee accused a faculty member of sexual harassment after the faculty member told her that he was "crazy about her" after a work event. The BCHRT emphasized that the conduct was not repeated and that "the comment happened on only one occasion in the context of a celebratory dinner after a successful day of work." Although the comment was sexual and unwanted in nature and had an adverse impact on the employee, the BCHRT concluded that the incident did not amount to sexual harassment or discrimination. In cases involving single incidents of alleged racial discrimination, there is often a different outcome. In the 2013 decision Jeffers v. School District No. 43, the BCHRT refused to dismiss a complaint from a black employee. A colleague left a note in the employee's office that referred to him with the N-word, which the BCHRT found was egregious. As in Pavan, the case involved a colleague using derogatory language; however, here the BCHRT upheld the complaint. Likewise, in the 2018 decision White v. Pace Chemicals and another, an Afro-Caribbean woman received a group email with an attached picture that made a racial joke using the N-word. The BCHRT found that the content of the picture was degrading and that the impact on the employee was particularly harmful, in refusing to dismiss the complaint. These decisions illustrate that legal protection from workplace discrimination varies when the claim arises from a single incident. Sexual harassment complaints have a more difficult time with a single incident than those of other forms of discrimination. This may be due to a connotation that harassment is repeated or societal norms that sex discrimination is not "as bad" as other types of discrimination, especially when it happens once. While these cases do not explain the reason for this discrepancy, they can indicate whether or not a complaint of workplace discrimination will be taken seriously if it arises from a single incident. Since single incidents can constitute discrimination, employers should ensure that their human rights policies have a zero- tolerance policy for discrimination and that employees receive training and information on workplace discrimination. Employers should be particularly focused on preventing racism in their workplaces. However, we expect that this area of law will evolve to recognize single instances of sexual discrimination in the future, so this area of discrimination should be taken just as seriously by employers. CHRR This article was written with Glen Stratton, an associate with Singleton Reynolds in Vancouver, and Kailey Graham, an articling student with Singleton Reynolds in Vancouver. Workplace discrimination can vary in its seriousness, especially if a complaint stems from an isolated incident rather than a pattern of behaviour. Melanie Samuels of Singleton Reynolds discusses when a single incident may — or may not — give rise to liability for discrimination Melanie Samuels partner and co-chair of the Employment and Labour Group, Singleton Reynolds in Vancouver

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