Ensuring Inclusive Workplaces: The Importance of Proper Pronoun Use

Introduction:

Transgender rights have become a prominent topic in recent times, prompting discussions about protection and acceptance in various sectors, including the workplace. Two crucial human rights tribunal cases shed light on the significance of using proper pronouns in the workplace, highlighting the impact of failing to do so. As a senior lawyer with decades of experience conducting workplace investigations and overseeing dispute resolution processes, we at Neil Hain Dispute Resolution examine these cases and their implications.

Case 1:

In EN v. Gallagher’s Bar and Lounge, 2021 HRTO 240, the Employer was deemed liable for discriminating against three employees based on their gender identity, expression, and sex on account of managerial employees (including the owner) refusing to use their reports’ correct pronouns. The owner’s insensitive response and use of derogatory language added to the hostile work environment. The Human Rights Tribunal of Ontario emphasized the importance of respecting employees’ gender identities and awarded significant damages to the applicants.

Case 2:

In Nelson v. Goodberry Restaurant Group Ltd., 2021 BCHRT 137 the Employer faced similar allegations, on account of its bar manager consistently misgendering and using gendered nicknames for an employee who identified as they/them. Despite attempts to correct the behaviour, the employer failed to curb the manager’s behaviour and address the issue adequately. The British Columbia Human Rights Tribunal awarded substantial damages and mandated a pronoun policy and diversity training.

Key Takeaways:

Pronouns are Fundamental: Human rights tribunals emphasized that using proper pronouns is not a nicety; it is a fundamental right and a crucial part of a person’s identity.

Respect and Inclusivity: Workplace investigations when considering the work environment must have regard for how employees’ gender identities and expressions are respected in support of an inclusive and safe environment for all.

Training and Policies: Employers must implement pronoun policies and provide mandatory diversity and equity training to educate employees about proper pronoun usage.

Proactive Approach: Employers should take employee concerns regarding discrimination and harassment seriously and conduct thorough investigations to address such issues promptly.

Conclusion:

In our role as workplace investigator, Neil Hain Dispute Resolution recognizes the significance of proper pronoun usage and its impact on creating inclusive work environments. Employers must prioritize respect and inclusivity, ensuring that all employees feel valued and accepted for who they are. By implementing robust respectful workplace policies and training, employers can foster a supportive workplace culture.

Call to Action: Consult Neil Hain Dispute Resolution for Expert Guidance on Building an Inclusive Workplace

For guidance on creating a harmonious workplace and addressing discrimination issues, contact Neil Hain Dispute Resolution. As a trusted professional with decades of experience in workplace investigations and dispute resolution, Neil Hain Dispute Resolution can help your organization build an inclusive and respectful workplace.

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Unveiling the Power of Independent Workplace Investigations: Bobsleigh Canada Skeleton Case

Introduction:

The recent independent investigation into harassment allegations made by three-time Olympic gold medallist Kaillie Humphries has concluded that there was “no evidence that any of the allegations constituted harassment.” Bobsleigh Canada Skeleton (“BCS”) released the findings after an initial investigation found insufficient evidence to take action, prompting a re-opening of the case by the Sports Dispute Resolution Centre of Canada. 

The case highlights the significance of conducting thorough independent investigations in workplace matters. In this blog post, we’ll delve into the importance of independent investigations, the potential pitfalls of internal investigations, and the value of seeking expert guidance from Neil Hain Dispute Resolution in conducting independent third-party workplace investigations.

The Power of Thorough Independent Investigations:

In the 1987 case of  Robichaud v. The Queen (Treasury Board), [1987] 2 SCR 84 (Robichaud), the Supreme Court of Canada ruled that employers can be held vicariously responsible for harassment committed by their employees, even if the employer did not know about it. This case is pertinent to workplace investigations, see Robichaud at para. 19: “…For example, an employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps.”

The Canadian Human Rights Commission (CHRC) is an independent body that is responsible for enforcing the Canadian Human Rights Act, RSC 1985, c H-6. The CHRC may consider a workplace investigation report conducted by or at the request of an employer when investigating a human rights complaint.

The Canadian Human Rights Tribunal (CHRT) is an independent judicial body that adjudicates human rights complaints referred to it by the CHRC. The CHRT has the power to order remedies, such as compensation, reinstatement, and changes to policies and practices, to address human rights violations

Occupational Health and Safety Act, RSO 1990, c O.1

  • 32.0.7 (1) To protect a worker from workplace harassment, an employer shall ensure that,  
  • (a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;

In Chandran v. National Bank, 2011 ONSC 777 (CanLII). The National Bank found Chandran guilty of misconduct without investigating or giving him a chance to defend himself. The court found that this was a fundamental breach of Chandran’s employment contract, and awarded him 14 months’ salary in damages.

  1. Impartiality and Credibility: Independent investigations ensure impartiality, eliminating any concerns about conflicts of interest. The credibility of the investigation process is enhanced, and stakeholders have increased confidence in the findings.
  1. Expertise and In-depth Analysis: Independent investigators possess expert knowledge and skills to conduct thorough analyses. Their unbiased approach allows for a comprehensive examination of the facts, including findings of credibility, leading to informed conclusions.
  1. Protecting Reputations: A well-conducted independent investigation protects the reputation of both the organization and individuals involved. Demonstrating a commitment to fairness fosters trust among stakeholders.
  1. Ensuring a Safe Environment: Prioritizing independent investigations underscores an organization’s commitment to creating a safe and respectful work environment for all employees.

Pitfalls of Relying on Internal Investigations:

Disotell v. Kraft Canada Inc., 2010 ONSC 3793 (CanLII) (Kraft)

The Ontario Superior Court of Justice assessed if an employer’s inadequate investigation into an employee’s harassment complaint amounted to a situation of constructive dismissal. “See Kraft at para 95. “The H.R. investigation, in my opinion, demonstrates the inherent difficulty of in-house investigations between employees of longstanding relationships, especially when there are conflicting reports”, and at para 120, “My conclusion on the evidence is that Kraft was not conducting a serious investigation.”

In Elgert v. Home Hardware Stores Limited, 2011 ABCA 112 (CanLII) the court found that the internal investigation was not conducted properly see Elgert at 16, “Kirck had no training for dealing with sexual harassment complaints. In his 26 years with Home Hardware, he had limited experience with four or five previous sexual harassment complaints and had never conducted an investigation.” Furthermore, the Vice President of Human Resources carried out the investigation was high school friends with the boss of Home Hardware who’s daughter had made allegations of sexual harassment against the plaintiff/employee allegedly for moving her away from her boyfriend for poor performance, see Elgert at para. 9. The employee was awarded significant damages.

Risks of carrying out poor internal investigations are sometimes not fatal if the defendant can prove their case at trial, but do you want to take this risk? See Leach v. Canadian Blood Services, 2001 ABQB 54 (CanLII) 

  1. Perceived Bias and Trust Issues: Internal investigations may be perceived as biased, leading to doubts about their objectivity. Employees may fear retaliation or question the fairness of the process, eroding trust in the organization.
  1. Limited Expertise and Resources: Internal investigators may lack the expertise required to handle complex cases effectively. This can result in incomplete or inadequate investigations, leaving crucial issues unresolved.
  1. Potential Conflicts of Interest: Internal investigators may face pressure to protect the organization’s interests, potentially compromising the investigation’s independence and integrity.
  1. Impacts on Employee Morale: An ineffective internal investigation can negatively impact employee morale and create a toxic work environment.

Seek Guidance from Neil Hain Dispute Resolution for Independent Third-Party Workplace Investigations

To navigate complex workplace matters and ensure a fair and safe environment, organizations can benefit from expert guidance in conducting independent third-party workplace investigations. As a senior lawyer with decades of experience in dispute resolution and workplace investigations, Neil Hain can provide invaluable insights and support to your organization. By entrusting investigations to an independent professional like Neil Hain, organizations demonstrate their commitment to transparency and fairness, fostering a positive work environment.

Conclusion:

The independent investigation into harassment allegations against Bobsleigh Canada Skeleton has shed light on the importance of conducting thorough and unbiased investigations in workplace matters. Independent investigations ensure impartiality, credibility, and expertise in examining complex cases. 

While internal investigations may carry the risk of perceived bias and limitations in expertise and resources, seeking guidance from third party experts like Neil Hain can enhance the investigation process and protect the well-being of employees. By prioritizing a safe and respectful work environment, organizations can maintain employee confidence and organizational integrity. Reach out to Neil Hain today to take the first step towards fostering a positive and inclusive work environment that prioritizes the well-being of all employees.

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BC Human Rights Tribunal Dismisses Worker’s Complaints in Workplace Investigations Case

BY NEIL HAIN

Introduction:

The BC Human Rights Tribunal recently dismissed a worker’s complaints of sex discrimination and the employer’s handling of the matter in a workplace investigations case. While the tribunal allowed the complaint regarding accommodation of the worker’s mental disability to proceed, most of the worker’s claims were found to have no reasonable prospect of success. This case highlights the importance of having a thorough workplace investigation carried out. If your organization needs assistance with workplace investigations, contact Neil Hain Dispute Resolution for expert guidance and support.

The Case:

The worker, employed as a crisis intervention worker for the City of North Vancouver, raised concerns about a colleague’s alleged sexual harassment and threatening behaviour. See Human Rights Code, RSBC 1996, c 210 (the Code) at s. 13(1)(b). “The Respondents’ conduct had an adverse impact on her, and her protected characteristic was a factor in the adverse impact” See Moore v. British Columbia (Education), 2012 SCC 61 [Moore] at para. 33. However, the tribunal concluded that there was insufficient evidence to establish sexual discrimination based on the worker’s gender. Malagoli v. City of North Vancouver and another, 2023 BCHRT 42 (CanLII) (Malagoli) at para. 67. The tribunal dismissed the Alleged Threat allegation under s. 27(1)(b) of the Code. See Malagoli at para. 67.

Nevertheless, the complaint related to the employer’s accommodation of the worker’s mental disability was allowed to proceed. See Malagoli at para. 170 and s. 27(1)(c) of the Code that allows the Tribunal to determine whether a complaint warrants the time and expense of a full hearing. See Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at paras. 22, 26-27.

Workplace Investigations and Findings:

An internal investigation conducted by an HR advisor addressed the worker’s complaint, acknowledging the interpersonal conflict but finding no evidence of bullying or harassment. Malagoli at para. 142. Subsequently, an independent investigator hired by the city deemed the colleague’s concerns reasonable, leading to no formal complaint being filed. See Malagoli at para. 109,110. This led to the tribunal dismissing the worker’s complaints concerning the colleague’s conduct and the city’s investigation, as well as the retaliation complaint, as having no reasonable prospect of success. See Malagoli at para. 332,333.

Importance of Thorough Workplace Investigations:

Employers must prioritize comprehensive workplace investigations to mitigate potential safety and human rights complaints. Thorough investigations help ensure the protection of employees’ rights and minimize legal risks for organizations. If your company requires professional assistance with workplace investigations, rely on Neil Hain Dispute Resolution’s expertise.

Contact Neil Hain Dispute Resolution:

For any workplace investigation needs, Neil Hain Dispute Resolution offers professional services to help your organization handle complex workplace issues effectively. Contact Neil Hain Dispute Resolution today to receive expert guidance and support in conducting fair and thorough workplace investigations.

Conclusion:

While the BC Human Rights Tribunal dismissed most of the worker’s complaints in this workplace investigations case, it allowed the complaint regarding accommodation to proceed. Employers should learn from this case and prioritize thorough workplace investigations to address conflicts and protect employee rights. For expert assistance in conducting workplace investigations, contact Neil Hain Dispute Resolution for reliable and comprehensive support.

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Unveiling Racism and Toxicity Allegations in the Making of “Lost” Series: A Canadian Labour Law Perspective

BY NEIL HAIN

Introduction

The recent allegations of racism and toxicity surrounding the hit series “Lost” and its showrunners, Damon Lindelof and Carlton Cuse, serve as an opportunity to examine workplace misconduct within the framework of Canadian labour law (legal implications and obligations). This article will summarize the allegations through the lens of workplace investigation in relation to HR professionals and how the allegations align with Canadian legislation and guidelines. And it will highlight the importance to HR professionals of creating inclusive and respectful work environments in accordance with the law.

The Duty to Provide a Safe and Respectful Workplace

Under Canadian labour law, employers have a legal obligation to maintain a safe and healthy work environment free from harassment, discrimination, and toxic behaviour. See Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536 at para 22 and T.M. v Manitoba (Justice), 2019 MBHR 13 (CanLII) at para 3. This duty extends to protecting employees from racial discrimination, see A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107 (CanLII), para 10, and fostering a workplace culture that values diversity and inclusion. The allegations raised by individuals involved in “Lost” bring attention to potential breaches of this duty, as they describe a toxic work environment where racial stereotypes were perpetuated, and actors of colour were allegedly marginalized.

Discrimination and Harassment Provisions

The Canadian Human Rights Act and various provincial human rights codes protect individuals from discrimination and harassment based on race, ethnicity, or any other protected ground. If the allegations of racism and unequal treatment in the “Lost” writers’ room are substantiated, they could potentially constitute a violation of these provisions. See Canadian Human Rights Act, RSC 1985, c H-6 (CHRA) and (Ontario) Human Rights Code, RSO 1990, c H.19.

Under provincial occupational health and safety legislation, harassment is considered a workplace hazard. See Alberta Occupational Health and Safety Act, SA 2020, c O-2.2 (OHSA), which is enforced by the Alberta Occupational Health and Safety Code, Part 27 Violence and Harassment, Hazard Assessment, s389.

Statute of limitations?

HR professionals must be aware of their legal responsibilities to prevent, address, and remediate such incidents, including conducting thorough workplace investigations and implementing appropriate measures to ensure a discrimination-free workplace.

Employment Equity Obligations

Canadian employers are also subject to employment equity obligations, which aim to promote equal opportunities and eliminate systemic barriers faced by designated groups, including racial minorities. See Employment Equity Act, SC 1995, c 44 (EEA) at s. 2 and each provinces’ Human Rights Code. These obligations require employers to take proactive measures to address imbalances in representation and opportunities within the workforce. See CHRA and related provincial human rights codes. The allegations of unequal treatment and limited characterization for characters of colour in “Lost” highlight potential concerns regarding the fulfillment of these obligations.

Creating an Inclusive and Respectful Workplace

In response to the “Lost” allegations, HR professionals must prioritize proactive measures, such as workplace investigations, to foster an inclusive and respectful work environment. This includes implementing comprehensive anti-discrimination and harassment policies, providing training to employees on diversity and inclusion, and promoting a culture of openness and accountability. See CHRA, EEA, OHSA, and various provincial human rights codes. Regular monitoring and assessment of workplace dynamics can help identify and address any potential issues before they escalate.

Conclusion

The allegations of racism and toxicity surrounding the production of “Lost” underscore the need for employers to be vigilant in upholding their legal obligations under Canadian labour law. HR professionals play a crucial role in fostering inclusive and respectful workplaces, ensuring compliance with anti-discrimination and harassment provisions, and promoting employment equity. By addressing these issues within the framework of Canadian labour law, organizations can work towards creating environments that celebrate diversity, uphold employee rights, and prioritize the well-being of all individuals.

For guidance on addressing allegations of discrimination or harassment, please reach out to Neil Hain for a consultation tailored to your specific situation.

Neil offers workplace investigation services, which provide impartial fact-finding and reporting to enable employers to take the appropriate actions based on the findings.

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Disrespect, Bullying and Harassment in the Workplace

BY NEIL HAIN

The places we work define a substantial part of our lives, and of our day-to-day wellbeing. After a year of lockdown, where a ‘workplace’ is starting to resemble a loosely held digital network, business leaders are required more than ever to consider the mental wellbeing of employees. Even where the legislative framework is well understood and reflected in a set of clear and enforceable company policies, grievances arise, and it takes a special and subtle understanding of how to navigate these challenges to ensure a rapid resolution is found.

One doesn’t need to look far in global media headlines to realize the importance of thorough and sound policies and practices around bullying and harassment in the workplace, and also of workplace investigations. Taking the example of the Scottish government, now in a state of disarray not only over allegations of harassment, but more so over the poor handling of the vital processes which should follow such allegations, it is easy to see how far reaching the effects can be for individuals, as well as organizations. Closer to home, the well-known example of Disotell v Kraft Canada Inc 2011 shows how easy it is to conduct inadequate workplace investigations, significantly exacerbating the damages, as well as the harm to victims and fellow employees. Another example is Sultz v. Attorney General et. al. a case where a supervisor’s breach of the employer’s harassment policy resulted in damages of $950,000 being awarded.

Bullying and harassment in the workplace can have immense repercussions on mental health, as well as professional progression of victims. In technical roles, the distraction posed can even lead directly to harm or injury. In BC, Bullying and Harassment is defined to include any inappropriate conduct or comment by a person towards a worker, where the person could reasonably have anticipated that this would cause the worker to be humiliated or intimidated. However, it excludes ‘reasonable action’ by the employer to manage and direct workplace activities. When exploring these cases retrospectively, with differences in individual value systems, and interpersonal relationship styles, having an expert on board, from Neil Hain Dispute Resolution, to mitigate against subjectivity, and to ensure clear interpretations of the law can assist immensely in ensuring that the investigations are thorough, and clear.

Bullying and Harassment includes a range of online and in-person mistreatment. Included in the list of identifiable acts are verbal aggression either in person or online, spreading rumours or gossip, sabotaging work, harmful or offensive initiation practices, targeted social isolation, aggressive gestures and physical assault. With workplaces moving increasingly online, there is a new need to understand when and how workplace bullying and harassment can take place.

In British Columbia, companies have a statutory obligation to protect and preserve certain rights in the workplace, and to ensure that that hazardous conditions, including maltreatment by other employees, are prevented, and remediated as effectively as possible. The Workers Compensation Act outlines a range of mandated procedures and actions to be taken by a firm such as ensuring that the right insurance policies are in place, and that compensation plans and structures are documented. It outlines the process of employees making claims, or complaints, both of which can lead to investigations, orders and fines. More fundamental than this, however, are strategies for prevention. This includes the provision of training and information around key policies which companies are required to have in place; defining bullying and harassment, and the companies intended remediation processes should a case ever arise. This is a lot to have in place, and it can be complicated, ensuring a watertight articulation of a response to the unknown. Policies need to rise with the circumstances, to meet the times, and to form that channel through which communication can flow.

Workplaces are built on trust and communication. Sound, specialist direction will position your company on a path to success; with secure and content employees able to focus on their task, safe in the knowledge that they are protected.  Above all, we at Neil Hain Dispute Resolution are problem solvers, with a long track record of solving these types of workplace challenges.

Getting professional support from industry experts can help to provide the best practice bare-bones around which to draft your company specific policies and prevention strategies. One such area is in properly clarifying and conducting workplace investigations. These policies and processes not only need to be in place, but require annual review, and there are issues of ongoing monitoring and enforcement. Accurate and efficient policy implementation in any context is substantially dependent on the quality and specificity of the policy to suit the task – and this where the art really is in the detail. Organizational harmony, just as in any community relies on the strength of the institutional pillars which ensure that people feel secure and can build trust.

Getting this wrong can result in significant liability, and steep lawsuits. Sometimes, at a glance, it is easy to think that the solution is clear, and before you, forgetting that there are legal requirements for processes to be followed, failing which major damages can result. In certain cases, resolution can be reached through a process of mediation, and understanding when and where mediation can bring resolution with specialist consultation can avert the need for workplace investigations. Following a claim, throughout the process there are major decisions to be made regarding the appropriate action to take, but where policies are clear, mediation is not possible and an investigation is required, it is always best to ensure that the order of turning every stone is handled with the utmost professionalism and care to mitigate the risk of major damages resulting from failing to apply due process. In the worst cases, such as Robichaud v Canada Treasury Board) where cases involve discrimination, this becomes an issue in contravention of the Human Rights Code, or, as in the case of Disotell v Kraft Canada Inc 2011, this can lead to constructive dismissal. There is significant financial and reputational risk if employees do not adhere to these vital preventative policies and practices, and if these cannot be communicated with sufficient clarity to avoid lengthy and messy investigations and arbitrations, frequently driving up damages.

In the event of a claim, workplace investigations are required to conduct full and fair investigations into any allegations and are required to make unbiased and objective findings as to whether the facts amount to a breach of the Employer’s policy. All too many investigations take longer than they should, are subject to a lack of fair process, or fail on the grounds of ensuring a precise interpretation of the language of the policy, which leads to bias, and a lack of objectivity. These are indeed sensitive projects, there are substantial privacy considerations pertinent here; a whole field of legislation in its own right; and their successful execution relies substantially on the foundations of the organization and its legal instruments. Investigations need to be planned, timing and sequencing are of the essence, and the delicate pieces of information require the utmost care in handling. Even the art of asking the right questions and taking the right approach to speaking to employees involved can significantly influence the success and efficiency of a workplace investigation. Assessing the credibility of witnesses is likely where there lies the greatest risk of bias, and the answer to this is undoubtedly experience. Bringing an expert in workplace investigations on board is an important consideration where a company is truly aiming to uncover the truth, and to resolve the issue to the benefit of all involved, and to ensure that trust and goodwill can be maintained in the institutional memory of companies, the legacies of so many who work hard to build and grow them.

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