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

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.