The Duty to Investigate under the Human Rights Code: An Overview

How should small- and medium-sized employers—many of which don't have in-house counsel, and some of which don’t have HR staff either—deal with human rights issues in the workplace? To what standard will smaller employers be held?

In our last post, we explained how a faulty workplace investigation can constitute discrimination under the Ontario Human Rights Code. If an employee claims to be experiencing discrimination in the workplace, the employer has a duty under the Code to investigate (and, depending on the facts, the employer may have similar duties under other statutes, such as the Occupational Health and Safety Act). Failing to investigate–or failing to investigate properly—can violate the Code. But what do we mean by a “duty to investigate”?

This week’s post summarizes the Human Rights Tribunal’s approach to assessing employer conduct, with an emphasis on 1) the employer’s duty to investigate allegations of discrimination and 2) the employer’s specific duties at each stage of the investigation process.

Under the Code, every employee has a right to a discrimination-free workplace. When most people hear the word “discrimination”, they think of differential treatment, and the Code does prohibit differential treatment on the basis of one or more of the sixteen personal characteristics listed in the Code. These characteristics are known as “prohibited grounds.” However, discrimination also includes any harassment that is linked to a prohibited ground. For example, a racist comment may constitute discrimination, even if there is no clear-cut differential treatment.

In Crete v Aqua-Drain Sewer Services Inc, 2017 HRTO 354, the Human Rights Tribunal of Ontario (“the Tribunal”) explained that, under the Code, “employers are obligated to take reasonable steps to address complaints of workplace human rights violations.” This duty is generally known as the duty to investigate. Importantly, the duty to investigate is triggered even in the absence of underlying discrimination. In other words, if an employer fails to investigate a complaint of discrimination, the employer can be found in violation of the Code even if it is ultimately determined that no discrimination occurred.

The leading decision on the duty to investigate under the Code is Laskowska v Marineland of Canada Inc, 2005 HRTO 30 ("Laskowska”), which distinguishes between 1) pre-complaint duties, 2) post-complaint duties, and 3) duties at the resolution stage:

1. Pre-complaint duties: Here, the Tribunal will ask whether the employer was aware of its duties under the Code. Did it demonstrate an understanding of discrimination and harassment? Was it equipped to respond to complaints? Were the appropriate workplace policies in place? Were the human resources staff properly trained?

2. Post-complaint duties: Here, the Tribunal will look at how the employer responded to the complaint. Did it act promptly? Did it take the matter seriously? Was there a proper investigation? Was the response sufficiently sensitive to the complainant’s needs?

3. Resolution-stage duties: Here, the Tribunal will consider the overall reasonableness of the employer’s response. Did the employer communicate the outcome of the investigation to the complaint? Was it ultimately able to provide the complainant with a safe, healthy, and discrimination-free work environment? If not, could the employer have done more than it did?

Importantly, the above are guidelines, not hard and fast rules. As the Tribunal made clear in Laskowska, employers will be held to a standard of reasonableness, not perfection. For example, the Tribunal’s assessment of the employer’s pre-complaint conduct will include an assessment of the relevant workplace policies, but many employers do not have any workplace policies. This is especially true of small and medium-sized organizations with relatively few employees. Similarly, the employer in Laskowska had a human resources department, but many employers do not. Indeed, many employers do not have “departments” at all.

Still, the Code does not demand perfection. It is possible to conduct a Code-compliant workplace investigation without satisfying all of the Laskowska criteria. In summary, while the duty to investigate is triggered as soon as the employer becomes aware of a potential Code violation, the investigation may take many forms. The Code may demand more or less, depending on the context. However, this does not mean that smaller, less sophisticated employers can “get away with” defective investigations.

From a risk management perspective, it is best to strive for perfection, or something close it. After all, the Tribunal will never fault the employer for going above and beyond what the law requires, but the consequences of falling short of one’s duties under the Code can be severe.