Fully investigating discrimination complaints safest move for employers
While it’s clear employers are not explicitly required to investigate discrimination complaints under the Ontario Human Rights Code – the Divisional Court concluded there is no freestanding duty to investigate in 2013 – those who do not investigate such issues do so at their own peril, Toronto employment lawyers Doug MacLeod and Nicole Simes write in Lawyers Weekly.
Section 5 of the code offers protections that have been interpreted by the Human Rights Tribunal of Ontario to mean that employers in the province have an obligation to take a complaint of discrimination or harassment seriously, respond promptly, investigate and take action where appropriate, says the article.
“Since 2005, many tribunal decisions concluded that employers have a duty to investigate complaints about discrimination,” write MacLeod and Simes of MacLeod Law Firm. “Failure to do so could result in liability, even if the behaviour was found not to be discriminatory.”
Conflicting case law on the issue of discrimination investigations means employers need to know how to address discrimination complaints from the human resources and legal perspectives, write MacLeod and Simes.
“Given the negative impact that discrimination can have on employee productivity, attendance, and morale, it makes sense for employers to investigate all discrimination complaints,” they write. “Where there is smoke, there is sometimes fire, and fires are expensive to put out. If it is only smoke, then the cost to investigate can be minimal. In this regard, an investigation may involve nothing more than a brief conversation with the alleged discriminator.”
An employer has a legal obligation to maintain a discrimination-free workplace and a safe workplace under the code and the Occupational Health & Safety Act, respectively, says the article.
“The courts can revisit whether there is a derivative duty to investigate discrimination complaints (which the Divisional Court has rejected). Alternatively, if the Ontario government believes that this derivative right exists, it can amend the code accordingly,” write Simes and MacLeod.
“In the meantime, employers who do not investigate discrimination complaints do so at their peril,” they add.