The Fine Line Between Racism and a Perception of Racism in the Workplace
April 7, 2022
Over the last few years, there has been much public discussion on the lived experiences of people of colour and how those experiences shape day-to-day interactions. The Black Lives Matter protests that took place throughout 2020 and 2021 highlighted these issues. When it comes to racism in the workplace and human rights violations that may result from racism, it can be difficult to determine whether an incident is actually related to race or not. The recent decision of the Alberta Court of Queen’s Bench in Wint v. Alberta (Human Rights Commission) and Suncor Energy Inc. demonstrates how the courts and the Alberta Human Rights Commission approach such issues.
Employee alleged racism behind request for drug tests
The issue made its way to the Alberta Court of Queen’s Bench after an employee’s complaint before the Alberta Human Rights Commission was unsuccessful. The employee, who is black, worked for an employer in the energy industry (Suncor Energy). He said his manager discriminated against him on the protected grounds of race and colour, which is contrary to the Alberta Human Rights Act.
There were two incidents that led to the filing of the complaint. The first incident occurred on July 16, 2014, when the employee was told by his supervisor an investigation was underway following a workplace accident in which the employee was believed to have been involved. It later turned out that the employee was not working the shift when the accident occurred.
The second incident occurred on February 17, 2015, when the employee said he was presented with, and asked to sign, a letter confirming he works in a safety-sensitive position and would therefore be subjected to random drug and alcohol testing. The employee refused to sign the letter. While no consequences befell the employee as a result of either incident, he claimed they amounted to workplace harassment rooted in racism.
The employee alleged that his manager was a known racist, telling the commission he had been informed that the manager used a racial slur to refer to black workers in 2011.
Employer cited misunderstandings, denied singling out complainant
The employer stated that the issue regarding the workplace investigation referred to an electrician who was mistakenly thought to have the same initials as the complainant employee. The employer explained that the matter was dropped once the misidentification was discovered.
Regarding the letter provided to the employee, the employer responded that all employees in safety-sensitive positions were required to sign such documents and that the employee in question had not been singled out.
An officer of the Human Rights Commission investigated the employee’s complaint and recommended its dismissal to the Commission’s Director. The employee appealed that decision but was unsuccessful in doing so.
Standard of reasonableness applies to Court review of Human Rights Commission’s decision
The employee, who wanted the matter to proceed to a tribunal, further appealed the decision to the Court of Queen’s Bench. The Court noted that a standard of reasonableness is applicable. This means the Court does not have to decide if it agrees with the Commission’s decision but only has to ask whether it was reasonable or not. The questions the Court asks to determine reasonableness were summarized as follows:
“First, a decision is acceptable if it is based on an internally coherent and rational chain of analysis, which is evident in the reasons themselves or which can be inferred from the record … or;
Second, the decision is justified in relation to the facts and the law that constrain the decision-maker…”
Court of Queen’s Bench found Commission’s decision reasonable
In looking at how the officer approached the complaint, the Court wrote that the safety letter was simply an acknowledgement that the employee occupied a safety-sensitive position and was therefore subject to the employer’s drug and alcohol policy. At no time had the employee actually been required to take a drug or alcohol test, nor had he ever been prevented from work after refusing to sign the letter. While the employee argued that such policies are illegal, the court wrote that an illegal policy is not the same as an unfair application of a policy rooted in racism.
In turning to the officer’s investigation of the safety incident, the Court agreed that the commissioner’s finding that the investigation into the employee stopped once it was discovered he was not involved was reasonable. This is despite the employee’s complaint that it took a full week before it was established he was not working that night.
Perception of racism not grounds for finding actual racism in employer’s actions
The court took some time to comment on the lived experience of the employee, writing,
“I do not in any way intend to minimize or delegitimize (the employee’s) lived experience as a black man in Canada. I accept that as a black person he has been subjected to discrimination both overtly and in the form of microaggression, whether by specific individuals or institutionally and systemically. I agree that it is dispiriting, and could even be traumatic, for an individual to continually experience this discrimination over a lifetime.”
The court wrote at length about the importance of recognizing not only overt acts of racism but also microaggressions. However, the court also stated that while there was no doubt the employee perceived the incidents to be rooted in racism, the officer was only able to focus on the state of mind of the employee’s manager, not the employee’s perception of it.
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