Skip to content

Thought Leadership

Recognizing subtle discrimination in the workplace: insights from recent legal cases

March 4, 2024

By Sheila Mecking and Michiko Gartshore

Subtle discrimination can have a much stronger and longer effect on employees when not properly addressed. It can also result in costly consequences for an employer who does not promptly act to ensure employees have a safe work environment free of discrimination.

Often referred to as “micro-aggressions”, these actions and behaviours can be difficult to detect, but are more prevalent than overt forms of discrimination. They are hard to detect because the actions or behaviours may be unclear or even have an explanation, but when viewed together, they show a much clearer picture of discrimination based on a protected ground.

Recently in Labourers’ International Union of North America, Local 183 v CTS (ASDE) Inc., 2022 CanLII 14925 (ON LRB), an employee was terminated. The incidents leading to the termination involved a Black employee allegedly becoming angry and screaming when he found his employer assigned tool-box had been cut into to access the contents. The second incident arose when the employee failed to answer his radio during an assignment. The Forman then alleged the employee became agitated, possibly raising his voice and slamming his fist on a desk, when approached about this incident.

At the Labour Board hearing, the Grievor provided social context evidence to support his case, including expert evidence about implicit bias against Black men in particular, including that there are negative stereotypes associated with Black men, painting them as loud, threatening, aggressive, and hostile.

While the Labour Board did not find intentional discrimination, it did note that the employer did not investigate the incidents or look into whether the incidents may have been racially motivated. The Labour Board held no just cause to warrant termination and that his termination was discriminatory.

In a second case, Mema v. City of Nanaimo (No. 2), 2023 BCHRT 91, a Black employee’s dismissal revolved around the use of a corporate credit card. Although the credit card agreement prohibited personal purchases, it was common practice within the City to allow employees to make personal purchases and then reimburse the City. The employee began falling behind on the payments and was ultimately put on a paid suspension, and then dismissed.

The Tribunal found that his dismissal was ‘informed by racial stereotypes’, given that the employee was uniquely singled out. There were findings that the suspicions around the employee arose at least in part due to his race, as supported by rumors and comments at the time of his suspension. The Tribunal confirmed that it was enough that the employee’s dismissal was subconsciously in part due to the fact that he was a Black man.

The employee was awarded $50,000 in damages for injury to dignity and $583,413.40 for lost wages during the three years since his dismissal.

It is important to remain vigilant in identifying subtle discrimination and promptly addressing it in your workplace to ensure all employees have a healthy and safe workplace.

Upcoming webinar:

Stewart McKelvey will be hosting a webinar on March 27, 2024 to highlight the signs of subtle discrimination and steps to take to mitigate liability. Please contact Alicia Gordon, Events Coordinator, at acgordon@stewartmckelvey.com for more information.


This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour & Employment Group.

Click here to subscribe to Stewart McKelvey Thought Leadership. 

SHARE

Archive

Search Archive


Client Update: The Employer’s implied contractual obligation to supply work: common law developments in employment law

March 10, 2015

Following several Supreme Court of Canada decisions in the late 1990s and early 2000s, the law of constructive dismissal was well defined – or so many thought. The Court’s decision in Potter v. New Brunswick Legal…

Read More

Client Update: Auto Insurance – Direct compensation for property damage is coming to PEI

March 5, 2015

In our May 20, 2014 client update, we reported on significant changes affecting automobile insurance in Prince Edward Island, including changes to no-fault benefits available under section B and changes to the damages cap for minor…

Read More

Labour and Employment Legislative Update 2014

February 10, 2015

2014 LABOUR AND EMPLOYMENT ATLANTIC CANADA LEGISLATIVE UPDATE As we move forward in 2015, we know our region’s employers will want to be aware of new legislation that has passed or could soon pass that…

Read More

Client Update: 2015 Minor Injury Cap

January 30, 2015

On January 28, 2015, the Office of the Superintendent of Insurance issued a bulletin in Nova Scotia. The 2015 minor injury cap has been set at $8,352, an increase of 1.7 per cent over 2014.…

Read More

Client Update: Outlook for the 2015 Proxy Season

January 29, 2015

In preparing for the 2015 proxy season, you should be aware of some regulatory changes that may impact disclosure to and interactions with your shareholders. This update highlights what is new in the 2015 proxy…

Read More

Client Update: Reaching New Limits – Recent Amendments to the PEI Lands Protection Act

January 6, 2015

During the Fall 2014 legislative sitting, the Province of Prince Edward Island passed legislation that results in significant changes to the Lands Protection Act. The amendments have just been proclaimed and were effective January 1, 2015.…

Read More

Atlantic Employers’ Counsel – Fall 2014

December 17, 2014

The Editor’s Corner Clarence Bennett This issue focuses on the family and the interaction between employment and family obligations. As 2014 comes to a close, I would like to extend Seasons Greetings to all of…

Read More

Client Update: Recent Developments: Disability Insurance Policies

December 17, 2014

RECENT DEVELOPMENTS: DISABILITY INSURANCE POLICIES & LIMITATION PERIODS IN NOVA SCOTIA Two recent Nova Scotia decisions have clarified the issue of limitation periods in disability insurance policies and “rolling” limitation periods.   THORNTON V. RBC…

Read More

Client Update: Changes to Related Party Election (Section 156 – Excise Tax Act)

December 16, 2014

Section 156 of the Excise Tax Act (the “ETA“) provides an election that relieves certain related parties from having to collect Harmonized Sales Tax (“HST“) on the goods and services sold between them. The election deems qualifying…

Read More

Doing Business in Atlantic Canada (Fall 2014) (Canadian Lawyer Magazine Supplement)

November 20, 2014

IN THIS ISSUE: More Than Wind – Emergence of Tidal Energy in Atlantic Canada by Sadira Jan Aquaculture and Salmon Farming in Atlantic Canada by Greg Harding The Expanding Atlantic Canada Offshore Industry: Growing Offshore without Going Offside by Stephen Penney and Rebecca…

Read More

Search Archive


Scroll To Top