Return to Work Case Studies from the Front Lines – Case Study #6

Diversity and Inclusion Considerations: Addressing Microaggressions in the Workplace

Over the past few months, businesses have been dealing with numerous challenges. While many of the key considerations for employers navigating their return to work are very obviously connected to the COVID-19 pandemic—such as accommodation, risk assessments, and mental health considerations, all of which we’ve covered in previous installments of this blog series—the pandemic and the resulting changing workplace realities have also had an effect on other key issues for employers that may be less obviously connected. As a result of the high levels of stress employees (and employers) are facing, many workplaces have already experienced, or are likely to experience, an increase in conduct issues. In addition, recent social movement activity, and the accompanying awareness of high-profile cases, have emboldened employees experiencing and observing misconduct to bring their concerns forward. In this sixth post of our blog series, Return to Work Case Studies from the Front Lines, we draw from our experiences working with employers “on the ground” to provide practical insights for organizations with respect to how to navigate the complex landscape of microaggressions. The following case study illustrates why microaggressions may be difficult to detect and address, and how well-intentioned employers can fail to ensure that an equity, diversity, and inclusion strategy sufficiently prevents and addresses microaggressions in the workplace. As always, the case study below is based on a real-world situation with respect to which we recently provided advice to a client. The details of the scenario have been adapted and anonymized.

The Scenario:

• In its most recent recruitment campaign, shortly before the COVID-19 pandemic, an employer actively focused on improving team diversity, and hired a number of racialized employees. The employer has approximately 80 employees working at its head office, many of whom now work remotely.
• Tina, the company’s new Marketing Manager, is a Black woman. When she started at the company, the only other Black employee was Sasha, who worked in the Finance Department, and had started only the week before Tina.
• Throughout the first few months at the company, colleagues and Tina’s Director would often call her Sasha.
• During the last team meeting prior to the pandemic, one of Tina’s colleagues commented on how nice Tina’s hair was, and asked to touch it.
• Recently, Tina was in charge of presenting a revised marketing strategy to the senior leadership team. After the presentation, Tina’s Director congratulated Tina on her presentation, saying “Fantastic job! I was really impressed. You’re so articulate!”
• In early August, Tina had a mid-term performance review meeting with her Director. Tina received very positive feedback about her performance. At the end of the meeting, her Director said that he had spoken to Tina’s team, and that he would recommend that she smile more so that she seems “less intimidating and more approachable”
• After the meeting, Tina made a complaint to HR, alleging that she is facing discrimination at work. The HR manager asked Tina to write down her complaint, pursuant to the company’s policy, and let Tina know that the company would follow up with her regarding next steps.
• The HR manager noted that the kinds of behaviours Tina was complaining of were not included as examples of discrimination in the company’s policies, and did not seem particularly serious. Nevertheless, the employer began investigating, and contacted us for assistance.
• The company had not provided any recent training on discrimination.

Key Considerations and Takeaways:

In this case, the employer followed its internal policies and commenced an investigation. In addition to being able to say that policies are applied consistently, and therefore not opening the door to additional claims, the employer’s decision allowed it to avoid potential additional discrimination allegations. While the Ontario Human Rights Code [Code] does not explicitly require employers to investigate claims of discrimination, the Human Rights Tribunal of Ontario (the “HRTO”) recently confirmed that equal treatment under the Code requires the employer to investigate complaints of discrimination (and discriminatory harassment), and that failure to properly investigate a complaint may constitute discrimination, in breach of the Code. For more information about this recent HRTO decision, see our blog. In addition to navigating this complaint generally, seeking legal advice before completing the investigation allowed the employer to receive guidance about its investigation processes, which can be key in ensuring that an investigation is conducted that is appropriate in the circumstances. As noted above, while failing to investigate at all could have led to additional discrimination-related liability, not investigating properly could have led to similar liabilities, and where the investigation concerns allegations that the investigator is not familiar with, such as microaggressions in this case, obtaining legal advice can help to navigate the intricacies of the situation, including with respect to the investigation, which ultimately will inform the employer’s response. Where the employer exposed itself to liability in this case was in not ensuring that its policies, and discrimination-related training for staff, including senior management, were sufficiently thorough in communicating the key aspects of the protections under the Code. Microaggressions can be very difficult for employers to address. A microaggression is typically defined as “a comment or action that subtly and often unconsciously or unintentionally expresses a prejudiced attitude toward a member of a marginalized group (such as a racial minority)”. The key aspects of this definition to note are that microaggressions are subtle, and can be entirely unintentional—the individual perpetrating the misconduct may not know that they are discriminating, and in many situations may be shocked and appalled that they have done so once it is brought to their attention. Because of the subtlety, employers may inadvertently dismiss these concerns as minor. In this case, Tina experienced a number of actions and comments that could constitute microaggressions. She and the only other Black woman at the company were frequently mistaken for each other despite that they worked in different departments, presumably for the sole reason that they are the only Black staff. Similarly, the request to touch Tina’s hair is a microaggression, because it is an example of “othering”—drawing attention to a difference based on race, and singling her out for that difference. Additionally, Tina’s Director’s comment, which he likely intended as genuine praise, suggests that he had assumed she would not be articulate, and was surprised to find out that she was. Like asking to touch one’s hair, this comment is a fairly common example of a microaggression based on race. Finally, Tina’s Director soliciting feedback about her performance from her team, and his suggestion that she should smile more to be seen as more approachable is another likely example of subtle discrimination, both because soliciting feedback for those who directly report to the manager likely would not have occurred to someone else in the same position who did not have the same protected characteristics, and because it perpetuates the stereotype of Black women as intimidating and unapproachable. As noted above, microaggressions are difficult to navigate because, in many cases, someone who has committed one may not know they have done so. From a workplace perspective, having clear policies and thorough training limits the possibility that employees will commit this kind of misconduct, even if they truly had not intended to. Additionally, begin able to recognise these problematic behaviours, and address them appropriately, will allow employers to significantly limit their discrimination-related liability. Employers that have not done so recently would be well advised to review their policies, and conduct refresher training, to ensure that expectations are clearly communicated, and employees are educated about the kinds of behaviours that may, though unintentionally, constitute discrimination. Stay tuned for next week’s installment in the case study series, which will address “back to school” considerations.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.