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Deconstructing Gender and Racial Myths and Stereotypes: A Legal Responsibility
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It is important for employers, human resources practitioners and employees to understand and properly respond to myths and stereotypes based on race and gender. Societal expectations have changed, particularly in the workplace, with the ever-growing focus on ensuring diversity, equity, and inclusion. Workplace law has followed society’s lead in these matters, emphasizing the need to debunk the gender and racial myths and stereotypes that have deprived complainants of proper redress in the past.
The law of the workplace now demands an awareness of these myths and stereotypes - an awareness which must now guide the conduct of employers in responding to allegations. For instance, an employer’s inadequate investigation of a discrimination complaint can, in and of itself, be discrimination contrary to the Human Rights Code, irrespective of whether the discrimination complaint is successful.[1] If an investigation accepts or rests on discredited myths or unacceptable stereotypes, it may constitute discriminatory conduct. It is therefore essential for employers to be cognizant and wary of gender and race-based myths and stereotypes.
An example of this arose in a decision we covered in last month’s newsletter article. There we saw how racial stereotypes and myths in the Francis[2] case contributed to the employer’s devastating misconception that the complainant was too sensitive, overreactive, lazy and slow. This, in part, resulted in the sad and shocking destruction of the complainant’s life and an unprecedented award of damages.
Myths and stereotypes have also been prevalent in the response to sexual harassment allegations. One such myth holds that an individual who has consented to sexual activity in the past is more likely to consent to sexual activity in other circumstances. This is based on the stereotype that those who consent to sexual activity in some circumstances may be of lower moral character and credibility. Both the myth and the stereotype have been expressly rejected as outdated ideas by the Supreme Court of Canada.[3]
In terms of the workplace, sexual harassment has long been recognized as a prohibited form of sexual discrimination.[4] However, studies have shown that it remains prevalent[5] and that there is a disconnect between the views of company executives as to whether sexual harassment is a problem in their workplace, whether they have a corporate culture that prevents it, and whether harassment actually occurs in that workplace.[6]
The B.C. Human Rights Tribunal has extensive experience dealing with sexual harassment and discrimination complaints. Recently the Tribunal set out the kind of misconceptions which often prejudice an employer’s response to sexual harassment complaints.
In the 2020 decision The Employee v. The University and another, the Tribunal cited leading academic research in rejecting three myths and stereotypes which hinder a proper response to sexual harassment complainants and their allegations. The rejected myths and stereotypes included misconceptions based on:
- a complainant’s lack of protest in the face of alleged harassing conduct,
- delay by the complainant in reporting the alleged harassing conduct; and
- a complainant’s previous behaviour in other circumstances.[7]
In another recent decision, the Tribunal referenced Supreme Court of Canada authority in stating that:
Evidence of a complainant’s prior sexual history to argue a greater propensity to consent to the encounter at issue is presumptively inadmissible because of its reliance on myths and stereotypes...[8]
The issue of consent has been fraught with misconceptions. In that regard, the Supreme Court strongly stated in its 2019 trilogy[9]:
Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required.[10]
As well, consent must be specific. In this regard:
- it cannot be implied;
- it must be concurrent with the event in question;
- it cannot be established from acquiescence.
There is also a developing line of thought that consent should not be imputed from post-event activity. This recognizes myths and stereotypes regarding a victim’s response to trauma which may include, for example, maintaining a relationship with the offender despite earlier non-consensual activity.
Ignorance of the legal requirements for establishing consent is not a defence. An honest but mistaken view that a complainant consented to activity will not be accepted. In our view these considerations apply to workplace investigations. An investigation that is based on any of these misconceptions, myths, or stereotypes, will simply be unacceptable and may well constitute a human rights violation in itself. The investigation could thus be inculpatory, not exculpatory, even with the best of intentions.
The Ontario Human Rights Tribunal recently concluded that an employer’s inadequate investigation, conducted by an external investigator, itself constituted discrimination on the basis of sex contrary to the Ontario Human Right Code and awarded damages of $55,000 for intangible losses (which include injury to dignity, hurt feelings, etc.).[11] In its analysis, the Tribunal set out a number of questions that should guide an employer’s investigation[12]:
- was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident?
- was there a suitable anti-discrimination/harassment policy?
- was there a proper complaint mechanism in place?
- was adequate training given to management and employees?
- once an internal complaint was made, did the employer treat it seriously?
- did it deal with the matter promptly and sensitively?
- did it reasonably investigate and act?
- did the employer provide a reasonable resolution in the circumstances?
- if the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? and
- did the employer communicate its finding and actions to the complainant?
These questions offer employers a helpful guide for proper investigations.
Significance for Employers
Everyone in the workplace, including co-workers, must be cognizant of the concept of legal consent and the role that gender, sexual and race-based myths and stereotypes can play in our (mis)perception of activity in the workplace. This is particularly true for employers and the human resources professionals advising them. Employers are responsible for an harassment and discrimination free environment and must take active steps to ensure that exists. This includes conducting proper investigations and adequately addressing any discrimination in the workplace. In order to do so, employers must avoid the myths and stereotypes which are now noted and proscribed by the law. Failure to do so may expose them to significant legal liability.
[1] The Employee v. The University and another (No. 2), 2020 BCHRT 12 (CanLII), paras. 272-273.
[2] Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136; Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16
[3] R. v. Barton, 2019 SCC 33; R. v. Goldfinch, 2019 SCC 38; R.v. R.V., 2019 SCC 41; (the “Trilogy”)
[4] Janzen v. Platy Enterprises, [1989] I SCR 1252.
[5] Human Resources Professionals Association Report.
[6] Gandalf Group Survey.
[7] The Employee, supra, paras. 177-181, referencing Hastie, Bethany, “Workplace Sexual Harassment: Assessing the Effectiveness of Human Rights Law in Canada”, (2019) 31: 2 CJWL 293.
[8] MP v. JS, 2020 BCHRT 131, para. 4.
[10] Goldfinch, supra, para. 44.
[11] AB v. 2096115 Ontario Inc., 2020 HRTO499
[12] Ibid., paras. 98-121
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Overholt Law LLP Webinar: Managing Monitoring and Surveillance in the Workplace
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Overholt Law LLP will be hosting a webinar on Tuesday, March 30 from 11 a.m. to 12 p.m. PST on "Managing Monitoring and Surveillance in the Workplace".
Now that the office, for many, is quite literally, their home, employers have become increasingly concerned about employee productivity, increased risk of identity theft, prevention of workplace injury, and protection of company property. However, these legitimate concerns about employee performance and ensuring the security of business assets must be balanced against employees’ reasonable expectation of privacy. Magnifying these challenges that employers currently face is the availability of technology that can easily monitor, track and surveil employees. To what extent can employers make use of this type of technology?
Please join Jennifer Kwok, Partner at Overholt Law LLP, on March 30 as she provides insight on workplace monitoring in this continuing environment of remote work and employees’ right to privacy. This webinar will be moderated by Overholt Law LLP lawyer Kai Ying Chieh.
Date and Time
Tuesday, March 30
11 a.m. to 12 p.m. PST
Cost
Complimentary seminar for clients and friends of Overholt Law.
CPD Credits
HR professionals, CPAs and lawyers can claim Overholt Law's seminars as CPD credits.
Registration
Click here to register for our webinar. Please register by March 26.
Questions
If you have questions or need help with your registration, please call 778-653-7561 or email trustedadvisors@overholtlawyers.com.
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