Background
John, a Black Canadian born to Caribbean parents, is a Marketing Analyst at a mid-sized health products company in Oakville, Ontario. He has been with the company for five years. The company’s Managing Director, Mike, is a middle-aged white man who has been with the company for 15 years and hired John into his current role.
Over the years, Mike has made several comments that John has perceived as microaggressions. For instance, when offering him the position, Mike remarked that John would enhance the company’s image in terms of diversity. He has also made offhand comments about John being highly athletic.
John has been passed over for two team lead promotions. His performance reviews are consistently strong, and his experience is comparable to that of the selected individuals. Last month, Mike informed John that he was not selected for the most recent opening. Mike said the following:
“You are a valued member of the company, but we see you more as a ‘hands-on person’ – not everyone is cut out to be a leader. Look, we really hope to keep you here with us. Plus, we need you to play on our intramural team this spring!”
John decided to file a complaint with the Human Resources Manager. He believes Mike’s decision not to promote him was rooted in systemic racial stereotypes that exist within the company. Since he is the only Black employee, he does not trust that an investigation will be fair. As a result, John makes a request to HR that a Black investigator be appointed to investigate his complaint.
What should the HR Manager do? Does John have the right to select his investigator?
The Legal Position
Procedural fairness is the cornerstone of workplace investigations.[1] Although the level of fairness afforded is context dependent, some minimum requirements include the following: an unbiased investigator, notice, the right to be heard (including the opportunity to respond to contradictory evidence), a timely process, the right to representation, and informing the parties of the findings and potential corrective action.[2]
With respect to choosing one’s investigator, the jurisprudence is limited but offers some guidance.
- Miller v. Canada Human Rights Commission (1996)[3]:
- The applicant of Aboriginal origin claimed that the Commission’s use of a non-Aboriginal investigator to investigate his allegation of discrimination was procedurally unfair.
- The Federal Court Trial Division dismissed this complaint as there was no “reasonable apprehension of bias” created by appointing a non-Aboriginal person to investigate the complaint.
- The court determined that race is not a relevant factor in the appointment of the investigator. In fact, allowing the complainant to select the racial identity of the investigator would give rise to an apprehension of bias and violate the respondent’s right to procedural fairness.
For reference, the test for a reasonable apprehension of bias is effectively summarized as follows: “whether a reasonable and informed person, with knowledge of all relevant circumstances, viewing the matter realistically and practically, would think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly.”[4]
- McConnell v. Canadian Human Rights Commission (2004)[5]
- The applicant filed a complaint alleging discrimination on the grounds of race and ethnicity. She objected to the appointment of the investigator, insisting that it should be assigned to a woman of a visible minority group.
- Citing the Miller case, the Federal Court reaffirmed that the complainant does not have the right to choose the investigator.
- The appointment of an investigator who is not of the same gender or race as the complainant does not give rise to a reasonable apprehension of bias against the complainant. It therefore does not violate the duty of procedural fairness.
In summary, the jurisprudence suggests that the complainant does not have a right to pick their investigator based on their identity. Likewise, it follows that the respondent does not have this right either. Therefore, an organization is not obligated to accept these types of requests, and in certain circumstances, must reject them. However, even if there is no right to choose one’s investigator, an organization could make an accommodation or find a fair and balanced alternative.
The Case for Accommodating a Request
One compelling reason to accommodate a request would be for complaints of a violent and sexual nature, particularly sexual assault. Simply put, a female complainant may suffer trauma, become triggered, or feel unsafe in the presence of a male investigator. It is important for the parties to feel comfortable as part of the investigation, since their participation is critical for the investigator’s collection of pertinent evidence. As such, this is a practical concern for the integrity and completeness of the investigation.
Microaggressions are subtle comments or actions that convey negative messages towards individuals based on their identity.[6] These are often unintentional; therefore, it can be problematic if the investigator does not understand them and how they impact people. Combined with a lack of lived experience, investigators may not fully appreciate the nature of the complaint and the surrounding context. This could give rise to a partial investigation, which undermines procedural fairness.
The Case Against Accommodating a Request
The main concern with accommodating such a request is that it can create a reasonable apprehension of bias in the complainant’s favour that violates the respondent’s right to procedural fairness (or vice versa). Due to this legal standard, organizations should exercise diligence and caution when assessing these requests.
Furthermore, not every member of a minority group has the same lived experiences as the party making the request. Factors such as socio-economic background can greatly impact a person’s experience. Therefore, it does not necessarily follow that every racialized investigator would fully appreciate the perspective of a racialized party.
There is also the risk of tokenizing employees if their investigations are routinely related to complainants who share the same (or similar) identities as them. Moreover, there is a general and practical concern regarding resources. Not every HR department or external firm will have investigators who represent the various identities in a multicultural society like Canada.
Potential Solutions
- Cultural competency and trauma-informed training
Lived experience cannot be replicated. However, one method to balance concerns of cultural incompetence and procedural fairness is learned experience. Learned experience can be acquired through practice and exposure.[7] Therefore, training on cultural competency and trauma can help reduce biases and enhance trust with the parties.
Diversity and inclusivity training only serves to further educate and empower investigators, and it may assist in assessing systemic issues. Training forms part of the investigator’s learned experience and does not favour either party. The investigator is still neutral and will therefore afford all parties procedural fairness.
Whether an organization uses internal investigators or an external firm, it would be wise for would-be investigators to be trained on cultural competency and trauma.
- Where is the request coming from? Can we address the concern without violating procedural fairness?
Christine Thomlinson is the co-founder of Rubin Thomlinson LLP and the Managing Director of RT Workplace Training Inc. She is a leading authority in Canada on workplace investigations and graciously agreed to be interviewed. In her opinion, the reason behind the request matters.
“Employers should consider the reason for the request. Very often the underlying concern can be addressed. For example, if there is concern that a white investigator might not understand the lived experience of a complainant, the organization can assign an investigator with relevant cultural training and experience. Alternatively, if the investigator that was going to be chosen has lived experience anyway, it may not be a controversial assignment since the decision was not made to acquiesce one party’s preference.”
In light of this, I present four practices that can balance procedural fairness with the concerns raised by the parties involved in an investigation.
First, if possible, the organization should address the underlying concern behind the request. Examples of this include assigning investigators with cultural competency and trauma-informed training, as well as using external investigators for systemic allegations.
Second, the organization should accommodate practical concerns that could affect the investigation’s integrity or completeness. For example, it may be appropriate to take steps to avoid re-traumatizing individuals involved in serious complaints. In a related but distinct vein, there may be a legal duty to accommodate, such as ensuring an investigator is able to communicate in sign language for a deaf party.
Third, the organization is not being procedurally unfair if the assignment of an investigator happens to align with one of the party’s identities, so long as the decision was not made to concede to one party’s preference. Consider this practical example: a company’s HR department has a small roster of qualified investigators who happen to all be women. Upon receiving a complaint of sexual harassment from a female complainant, the investigation is assigned to one of the female investigators.
Fourth, the organization may be able to address a request in a balanced manner. An example of this would be using an investigative panel with representation from the concerned minority group.
Although this article has focused on the perspective of a complainant, it should be noted that the perspective of the respondent also matters. It is possible that a respondent may have concerns about the assignment of an investigator that could be addressed by the organization. An important takeaway stems from the duty of procedural fairness: the choice of an investigator must be fair to both parties.
Conclusion: John’s Request
How should the company handle John’s request? The jurisprudence suggests that picking an investigator at John’s request purely based on racial characteristics could give rise to a reasonable apprehension of bias.
What alternatives are available?
While there is not just one correct answer, we should consider Christine Thomlinson’s point about where the request is coming from and the reason behind the request. In this situation, John is concerned that systemic racism in the organization will prevent the investigator from drawing fair conclusions. Therefore, it is possible to balance this concern by engaging an external firm to investigate the complaint. This decision is not acquiescing to John’s request for a specifically Black investigator, but it addresses his underlying concern in a manner that is fair, neutral, and impartial to all parties.
About the Author
Dylan J. Fenton is the Managing Director – Nova Scotia for an HR consulting firm. He joined the company in November 2024. Dylan holds a Juris Doctor (J.D.) and Bachelor of Civil Law (B.C.L.) from McGill University, as well as an Honours Bachelor’s degree in Political Science from the University of Ottawa. Dylan was a 2024 Call to the Bar in Ontario. His firm specializes in conducting workplace investigations, specifically investigating complaints related to harassment, discrimination, workplace violence, and other forms of misconduct.
Footnotes
[1] “Marentette v Canada: The Weight of Procedural Fairness,” Nikki Banwait, Ontario Bar Association (2024). https://www.oba.org/marentette-v-canada-the-weight-of-procedural-fairness/
[2] Ibid. See also: “Principles of procedural fairness,” Government of Canada: Office of the National Defence and Canadian Armed Forces Ombudsman (2024). https://www.canada.ca/en/ombudsman-national-defence-forces/education-information/civilian-employees/procedural-fairness.html
[3] Miller v. Canada Human Rights Commission, 1996 CanLII 20110 (FC). https://www.canlii.org/en/ca/fct/doc/1996/1996canlii20110/1996canlii20110.html
[4] “A Challenging Trial Judge or a Reasonable Apprehension of Bias?,” Practical Law Canada Corporate & Commercial Litigation (2018); Roberts v. R., 2003 CarswellNat 2822 (S.C.C.).; Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CarswellNat 434 (S.C.C.).
[5] McConnell v. Canadian Human Rights Commission, 2004 FC 817. https://www.canlii.org/en/ca/fct/doc/2004/2004fc817/2004fc817.html?searchUrlHash=AAAAAQAKaW52ZXN0aWdhdAAAAAAB&offset=1859&highlightEdited=true
[6] Webster’s Dictionary (paraphrasing). https://www.merriam-webster.com/dictionary/microaggression
[7] “The Value of Lived and Learned Experiences,” Tobias Berkman and Danny Egol (2020). https://www.cbi.org/article/part-three-the-value-of-lived-and-learned-experiences/