Workplace Racism: Investigating Unwitnessed Allegations & the Value of Circumstantial Evidence
Previously published on Lexology.
Whether it be micro-aggressions, systemic and structural prejudice or overt acts of bigotry, 2020 has seen as meteoric rise with the recognition of, and concern with, harassment against racialized peoples.
Canada is not immune to systemic racism. There are historic reminders, such as the Indian Act, Chinese head tax, legalized slavery, Japanese internment camps, sixties scoop and residential schools, to name a few.
Considering the current state in combination with our Country’s history, investigations into alleged workplace racism are becoming an increasingly important mechanism of reform.
As it speaks to the Canadian workplace, racism is a right’s infringement and protections are captured under many regimes including provincial and federal harassment legislation, human right’s codes and workplace policies.
Workplace racism falls under the rubric of ‘discrimination’ and is commonly measured as any inappropriate conduct, comment, display, action or gesture by a person that is either based on the protected characteristics of race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin.
Simply stated, it’s enshrined in Canada that all people should be judged on their individual attributes, skills and capacities, rather than stereotypes and assumptions based on groups to which they belong. Therefore, racialized persons in the workplace are entitled to conditions equivalent to that all non-racialized persons enjoy, not only with wages, status and function, but also with not having to face extraneous pressures that they’re somehow inferior.
When applying the investigative test for prima facie discrimination, the Supreme Court of Canada in Moore v. British Columbia (Education) (2012) is instructive in that the complainant must provide proof:
(i) That they possess a characteristic protected by a human rights code/legislation;
(ii) That they experienced a disadvantage with respect to the protected characteristic (i.e., differential, negative or unequal treatment), and
(iii) That the protected characteristic was a factor in the adverse impact (i.e., a direct link/nexus must be established between the disadvantage suffered and the protected characteristic).
As society shines a bright light on racial discrimination, unwitnessed complaints and prevalence rates are likely to rise; as such, it’s increasingly important that investigators understand the value of indirect evidence (also referred to a circumstantial evidence) and how it contrasts to direct evidence when applying the above-mentioned test.
As its name suggests, direct evidence relates immediately to the allegation being tested. If the direct evidence is true, the allegation is more often than not established. Direct evidence proves a fact at issue without the necessity for presumptions, guessing or use of logical inference. The types of direct evidence vary and can be anything material to a case that directly proves a fact at issue, including but not limited to audio, documentary or video exhibits. The most common type of direct evidence, however, is an eye-witnesses’ first-hand personal observations. If an eye witnesses’ version is deemed credible and reliable, it can be given considerable weight, especially if consistent with and in close harmony to the evidence of other credible witnesses and/or with the surrounding circumstances.
Indirect Evidence (Circumstantial Evidence)
Circumstantial evidence involves a deduction of facts from other known-facts and therefore uses inference-drawing, logic and common sense. Circumstantial evidence of a separate and strikingly similar act to the original event in question, if believed, can allow the original act to be corroborated. For example, if a respondent is under investigation for using a racial epithet and if it’s reliably established that the respondent used the same or similar epithet with someone else in the workplace, it can then be inferred that the epithet did, on balance, occur in the original allegation.
In R v. Villaroman (2016) the Supreme Court of Canada spoke to the gathering of circumstantial evidence and reinforced that any inferences drawn must be supported by corroborative evidence, cannot be speculative and alternative explanations must be exhausted to exclude all other reasonable alternatives.
Case Law: Circumstantial Evidence is Valid & Permitted
Racial discrimination in the workplace is often unwitnessed. Respondents who consciously engage in acts of discrimination are typically cautious to not generate direct evidence during the commission of their wrongdoing. Under this backdrop, using credibility assessments and circumstantial evidence to draw inferences and determine the facts are often the only tools available.
With direct evidence pointing to discriminatory motives rarely available, triers of fact have recognized that the civil standard of proof can include an analysis of all relevant factors, including that of circumstantial evidence. The following 4 cases are instructive:
1. In Moore v. Ferro (2019) the Human Rights Tribunal of Ontario cited the Ontario Superior Court case Shaw v. Phipps (2010 ONSC 3884), which emphasized “there need be no direct evidence of discrimination as discrimination will more often be proven by circumstantial evidence and inference.” The Ontario Superior Court argued “racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices. It concluded in cases where discrimination must be proved by circumstantial evidence, there are no bright lines and it must determine what reasonable inferences can be drawn from proven facts.”
2. In SHA v. Canadian Union of Public Employees (2019) it was held that circumstantial evidence can lead to as thorough a sense of surety as does direct evidence. In this case the arbitrator proposes that “triers of fact are entitled to draw inferences that are reasonable and appropriate from the circumstantial evidence available and draw conclusions therefrom on the balance of probabilities.” This decision further sets out that “the convincing power of circumstantial evidence usually lies in the weight of many circumstances added together. The combination of evidence is what makes it effective and that indeed circumstantial evidence can sometimes be more convincing than direct evidence, dependent on its source and its particular relation to the issues at hand.”
3. In Islam v. Big Inc. (2013) the Human Rights Tribunal of Ontario held that “direct evidence is not necessary to establish a breach resulting in discrimination; circumstantial evidence may be used.” This decision reinforced that the civil standard of proof allows for indirect evidence to be applied where the trier of fact “does not consider the witness’s evidence in isolation, but instead considers the totality of the evidence” when inconsistencies or competing views are present.
4. Kish v. City of Regina (1993) reinforced the difference between direct and indirect evidence has very little practical significance. In civil cases, the weight of indirect evidence depends upon the strength of the interferences that can be drawn from it. This decision cites the Law of Evidence in Canada: “in civil cases the treatment of circumstantial evidence is quite straightforward. It is treated as any other kind of evidence. The weight accorded to it depends on the strength of the inference that can be drawn from it and this is a task for the trier of fact (Sopinka, Lederman & Bryant Butterworths, 2nd ed., 1992, p.140).”
In conclusion, allegations of racial discrimination matter, perhaps now more than ever. However, investigations into discriminatory behavior are notorious for lacking direct evidence. As difficult as the task may be, investigators must still make a decision and the proper application of circumstantial evidence can prove invaluable in this regard.
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