BY NEIL HAIN
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),  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.
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.