Alberta worker's discrimination, retaliation complaints have merit

A worker’s discrimination and retaliation complaints had enough information to warrant a full hearing, the Alberta Human Rights Tribunal has found in overturning a finding that they lacked merit or a reasonable chance of success.

The Strathcona Shelter Society is a not-for-profit organization in Sherwood Park, AB, that provides shelter for women and their children. The worker was hired in August 2018 as a temporary night shift counsellor, then rehired as a part-time weekend evening shift counsellor the following January.

In addition to her weekend evening shifts, the worker sometimes accepted additional casual shifts when she would work with a colleague who was another counsellor who was on regular weekday evening shifts.

In September 2018, the worker worked a day shift. At the end of the shift, the worker was waiting to update the colleague, who was just starting hers. The colleague yanked the worker’s long-braided hair and asked her, “what is this?” The worker asked if there was anything in her hair, to which her colleague responded that the braid was worn in three sections. The worker, who identified as a Black woman and wore her hair in that style as an expression of her identity and African ancestry, felt “embarrassed, violated, disrespected, and thoroughly humiliated.”

A month later, the worker worked with the same colleague on an evening shift. The colleague told the worker about a meeting she had had with the director and executive director of the shelter during which there had been a discussion about layoffs of employees hired by the former executive director – of which the worker was one. The colleague also said that she was well-connected with the board of directors and was a good friend of the executive director.

Worker felt sabotaged

According to the worker, over the next two months, she felt that the colleague was giving her incorrect instructions and sabotaging her work.

On Nov. 16, the colleague asked the worker what language personal emails she was reviewing on her cellphone were in. The worker responded that it was Arabic and the colleague said that language made her uncomfortable. Later that shift, the colleague yelled at her with crude language while she was on the phone. The worker wanted to discuss it, but the colleague refused and said that it was only a matter of time until the worker was fired.

The next day, a union representative called the worker to ask about what had happened the night before. The worker described her experience working with the colleague over the previous two months and this led to a meeting with the director.

The director asked the worker to write a complaint for a neutral investigator to investigate and said that the worker would not work with the colleague in the meantime. The worker was unhappy with this decision, because the colleague worked full-time evening shifts during weekdays and it left her limited to two weekend days per week.

Strathcona maintained that the worker asked to not be scheduled with the colleague and the union agreed they weren’t to work together until the investigation was completed.

An Ontario Human Rights Tribunal decision enforced the concept that unintentional discrimination is still illegal discrimination, writes an employment and human rights lawyer.

Investigation focused on bullying, harassment

The investigator focuses on whether the colleague’s behaviour constituted bullying and harassment and continued for a couple of months.

On Feb. 5, the colleague violently grabbed a set of keys from the worker in front of a client, which upset the worker to the point of crying. She became afraid to go to work if the colleague was still there. She said that when the colleague worked the shift before her, she would wait in her vehicle until the colleague left.

The investigation report determined that the colleague had acted inappropriately with dismissive language, overstepped the bounds of her role, and exhibited objectionable, unwelcome, and angry behaviour toward the worker. However, the investigator concluded that this was not harassment or intended to cause offence or humiliation.

According to the worker, she didn’t receive an apology and the colleague wasn’t disciplined, leaving her feeling ignored and disregarded. However, Strathcona claimed it coached the colleague on appropriate workplace behaviour and interaction.

In March, the worker applied for a full-time position, but she didn’t receive information about her application while other candidates were informed of the outcome. The worker sent an inquiry, but she didn’t hear back. According to Strathcona, this was due to an administrative error and it otherwise followed seniority and hiring provisions in the collective agreement.

Unfair treatment at work is not discrimination if it’s not related to a specific protected ground, according to the Ontario Human Rights Tribunal.

Grievance denied

The worker filed a grievance alleging that Strathcona’s decision to avoid overlapping shifts with the colleague was harassment and the executive director shared confidential information about her in texts with the colleague. The grievance committee denied the grievance but mandated harassment training for management and the implementation of a privacy policy.

The worker filed a human rights complaint alleging discrimination in employment on the grounds of ancestry, colour, place of origin, and race. She then went on stress leave, returning Aug. 3.

When the worker returned to work, she couldn’t access her work computer. She received a new password and access a week later.

On Oct. 19, Strathcona asked the worker to use a new password it gave her. A supervisor told her that they had searched her computer and found evidence that she was running an online business on her work computer.

A disciplinary hearing was scheduled, but the worker said that she didn’t own a business and only occasionally online shopped, which other employees also did. On Oct. 22, the disciplinary meeting was cancelled and Strathcona apologized over the computer use issue.

A worker’s belief that they were subjected to discrimination is not fact, a federal labour relations board concluded.

Complaint to professional organization

The worker went on medical leave and in July 2021, the Alberta College of Social Works informed her that someone at Strathcona had complained that she was practicing without a license. However, the worker was working as a crisis intervention worker, which didn’t require registration as a social worker.

The worker filed a second complaint, this one of retaliation due to Strathcona failing to prepare for her return to work, her medical leave that was due to harassment and microaggressions from the colleague, adverse differential treatment in the computer investigation, and the professional registration complaint.

A human rights officer dismissed both complaints as having no merit or reasonable prospect of success in a full hearing and the worker appealed to the Alberta Human Rights Tribunal.

The tribunal found that there was enough information to show that there could be merit to some of the worker’s allegations, giving the two complaints a reasonable prospect of success in a full hearing. It was established that the worker had a characteristic protected by the act and experienced adverse treatment, which were two parts of the three-part test for prima facie discrimination. This took the complaint “out of the realm of conjecture,” said the tribunal.

The tribunal also found that the worker listed several actions against her by Strathcona and the colleague, which increased the chance that discrimination could be found – particularly since discrimination under the act comes not from intention but in the effect of someone’s actions.

In addition, Strathcona’s claim that the worker didn’t receive fewer shifts because of her complaint or the fact that the investigation wasn’t handled with the proper sensitivity and attention were issues that should be addressed in a hearing, said the tribunal.

As for the retaliation complaint, the tribunal found that it was in better position to make findings of fact in a hearing – such as whether the worker could demonstrate a link between the discrimination complaint and what happened after the complaint: shift rescheduling, a rough transition back to work after her stress leave, the false allegation of improper computer use, and the complaint about her practicing social work without a license.

The tribunal overturned the human rights officer’s decision and referred the worker’s two complaints for a full hearing.

See Lako v. Strathcona Shelter Society Ltd., 2022 AHRC 123.