by Daniel Standing LL.B., Editor, First Reference Inc.
Systemic racism can easily fuel discriminatory conduct, but it is notoriously hard to prove. In Ledger v Alberta Health Services and Alberta Justice and Solicitor General, 2021 AHRC 95, the Human Rights Tribunal of Alberta decided that an Indigenous woman’s case was dismissed too soon and should have instead gone to a full hearing. The decision provides a helpful overview of the law on discrimination, the interplay between race and changing societal values, and the prime importance of investigating and appropriately responding to discrimination complaints.
Facts of the case
Eileen Ledger was a Registered Nurse at a provincial jail in Alberta. She was a survivor of the Indian Residential School system, and was impacted by the highly publicized death of Colten Boushie, an Indigenous man, and the acquittal of a non-Indigenous farmer in relation to it. In February 2018, she attended a protest rally about the case and about unfairness against Indigenous people in the Canadian justice system. She held a sign that said, “White People Scare Me.” Days later, a fellow nurse circulated a picture of her with the sign to others in the workplace.
When management heard rumours that her colleagues would not protect her or guarantee her safety, her supervisor abruptly called her to a meeting and asked her about going to the rally. The supervisor then put her on a paid administrative leave for her own safety and to allow her colleagues “time to simmer down.” Also, with safety in mind, the employer planned to bring Ms. Ledger back to work in a women-only facility, where she was told not to interact with other employees, and to eat lunch in a boardroom.
Ms. Ledger was also greatly troubled by other things at work that she saw as racist and hurtful. Her complaint described learning of a correctional officer circulating a petition objecting to her returning to work. She also noticed that posters advertising an Indigenous celebration that Ms. Ledger was involved with had been torn down. These things happened in the broader context of discriminatory treatment at work, which included threats, racial slurs and ridicule. She said that the experience killed her spirit.
With her physician’s support, Ms. Ledger did not return to work as planned, and was approved for worker’s compensation in May 2018. She filed a human rights complaint against her employer on the ground of race. The employer disputed that she had experienced adverse treatment, and alternatively, it said that it had treated the situation appropriately, including investigating the claim, reminding employees about the respectful workplace policy and providing Ms. Ledger with alternate work.
As the first step in the complaint process, the Director of the Commission reviewed Ms. Ledger’s complaint. She dismissed the complaint, concluding that the employer had responded appropriately. The Director found no evidence of discrimination on the basis of race.
Ms. Ledger filed a request for review of the Director’s decision. She argued the Director went too far in determining the sufficiency of the employer’s response. Rather, in her screening role, the Director was to determine if there was a reasonable basis to refer the complaint to the Chief for a hearing. She further alleged that the Director was wrong to find no connection between the adverse treatment and race, and for failing to address her allegation of a toxic and racist work environment.
The Tribunal’s decision
The Tribunal began its analysis by noting the special nature of human rights legislation. Although not quite constitutional, it is treated as more important than other legislation. It is to be given a broad interpretation in favour of those it protects, and is adaptable to changing social conditions.
Turning to the Director’s decision, the Tribunal was unable to accept that there was no connection between Ms. Ledger’s race and the employer’s decision to administratively suspend her. The Tribunal said that would be like removing a victim of sexual harassment from the workplace and saying the act of sending her home was unconnected to gender discrimination.
Case law has found that discrimination, particularly racial discrimination, is often hard to detect and is often proven using indirect evidence. The Director’s role was to assess whether there was a reasonable basis to refer the complaint to a hearing. The Tribunal reasoned that various factors should have led the Director to refer the complaint for a hearing, including the complainant’s personal situation, the temporal and societal context of the events, the allegations of racist behaviour at the jail and the allegation that the employer did not act on Ms. Ledger’s complaints. Many of Ms. Ledger’s allegations depended on facts that were within her own personal knowledge which would have to be established at a hearing. The Tribunal also stated that it is not at the initial screening stage where the Director should assess the employer’s response; the employer’s actions to rid the workplace of racial harassment is a matter to be determined at a hearing, not at the stage where the question is whether there is a reasonable basis to refer the complaint to the tribunal.
In the final paragraphs, the Tribunal noted that the complaint alleges the employer failed to provide a work environment free from racial discrimination and failed to adequately investigate and respond. The Tribunal stated that the employer never seemed to examine the possible connection to race, but instead viewed the situation as one that Ms. Ledger brought upon herself by going to the rally and holding the sign. The Tribunal said that they “never seemed to approach the entire situation as one that engaged the Act, and the potential impact on the complainant as an Indigenous woman.” Therefore, the Tribunal overturned the Director’s decision to dismiss the complaint and referred the matter on for a hearing.
This case illustrates the danger of taking an overly simplistic, formalistic approach to dealing with allegations of human rights abuses. All human rights legislation is to be given a broad, purposive interpretation, meaning that it is construed largely to the benefit of complainants. With this in mind, employers should not hastily conclude that a worker’s complaint has no merit. A deeper analysis is often required, which may mean looking at the entire array of the complainant’s personal factors and the societal context. Employers are held to the standard of taking prompt and effective action where it knows or should know that racial harassment is taking place. While the employer is never held to a standard of perfection, to avoid liability it should respond to founded complaints in a way that is proportionate to the seriousness of the incident itself in a timely way.