Summary
In this Article, I provide recommendations on what to do if you are the victim of discrimination or harassment in the workplace. Persons Who Stutter need to stand up for themselves and protect their interests in the face of discrimination. Your ability to change behaviours and obtain redress can be dependent on the extent of your evidence. Good record keeping and documentation skills are necessary.Bullets
- Do not be afraid to voice your concerns.
- You need to always protect yourself and your interests.
- If you are considering presenting a human rights complaint, evidence is key.
- It is important to keep accurate and timely records and copies of any employer policies or procedures.
- The type, nature, and severity of the discriminatory act(s) that you experience may influence your response.
- If you are ever unsure about your rights or how to proceed, consult a lawyer.
In this Article, I provide some recommendations on what to do if you are the victim of discrimination or harassment in the workplace.
First, a quick refresher about discrimination. In my past Article on Disability and Discrimination, I mentioned that discrimination can be direct or indirect.
Direct discrimination is often easier to address because it is in the open. This discrimination is often based on negative attitudes and biases.
Indirect discrimination is often more difficult to address but because it is hidden or camouflaged. Unfortunately, this is the most common kind of discrimination and tends to occur when a rule or policy that appears neutral has an unfair effect on a person or group that is related to a protected characteristic.
Do not forget too that discrimination may be intentional or unintentional. Rules, practices, procedures, and policies that seem neutral can cause discrimination if they have the effect of putting certain groups of people with a protected characteristic at a disadvantage.
What should you do if you believe you are the victim of discrimination in the workplace due to your disfluency? First, protect yourself and your interests. No one is doing to do this for you. Second, if you are considering presenting a human rights complaint, documentation is key.
Below is a general list of actions to guide your response:
Are you Represented by a Union?
If yes, the first thing to do is contact your union and alert them to what happened. Your union can advocate on your behalf. Contacting the union early will help protect any timelines in case you wish to present a grievance.
However, you should be aware that your union owes a duty of fair representation. Fair representation is not absolute representation nor is it a level of representation that you demand, prefer, or want. Your union can withdraw their representation of you. If so, you need to be proactive to protect yourself in the event you wish to prosecute your concerns without their support.
Remain Professional
I appreciate that it can be tempting to be rude or aggressive in your conversation(s), especially if you are feeling frustrated or hurt. This is not helpful. I recommend always keeping your composure in all your methods of communication. A rude or meanspirited voicemail or email can come back to hurt you. It is harder for your employer to attack your credibility or character if you remain professional.
Gather your Evidence
Obtain copies of any applicable workplace policies and procedures that are in effect at the time of the discrimination. As a rule, I recommend obtaining a copy every time you are informed that a policy or procedure is updated. This is important because you do not know how your employer will react when you alert them about the discrimination. It is always better to already have the necessary evidence rather than having to go back and try to obtain, or ask, for it. Another consideration is that having the evidence can buttress the merits of your concerns if you can refer to any your employer’s self-imposed policies.
Documentation
Generally, if you are going to use your employer’s equipment or infrastructure (e.g., computer, Outlook for email or scheduling, or Word, OneNote, or Excel to create documents) to raise your concerns, you should make copies that can be stored offsite. If you are going to use email, it is good practice to use the Bcc option to blind copy a personal email account that is separate from your employer’s email server.
Keep a written record of the discrimination or discriminatory acts. Be sure to record what happened, names + job titles, dates, times, and places. If possible, create your record as soon as possible after each incident. Take your time to make sure your notes are accurate. If you make handwritten notes, keep a copy of them.
If you seek treatment because of the discrimination, for example, seeing a therapist or receiving a prescription from your physician for pharmacological treatment (e.g., antidepressants), keep your receipts. These types of records can help to support your claim of discrimination, reimbursement, or damages.
In addition to my Bcc advice, it is good practice to follow up every conversation, as soon as possible, by email, to create a record. Your email should capture the particulars: date, start/end time, location, names + titles of those present, and summarize the conversation. As a general practice, I recommend adding a concluding statement which invites the recipient to follow up with you in the event they feel your summary has errors or inaccuracies, within a reasonable deadline. For example:
If you believe that there are any errors or inaccuracies with my summary of our conversation, please reply to my email clearing identifying your concern(s) and proposed correction(s). Please note that if you do not reply to my email by <DEADLINE>, I will take the position that my email constitutes an accurate record of our conversation and there are no errors or inaccuracies.
Voice your Concern
It is important to confront the person who discriminated against you and tell them to stop. However, it is important to be strategic when “confronting” someone. In my experience, it is not helpful if you confront the person(s) is a loud or aggressive manner. This is likely to prompt a reaction where the other party feels attacked and they respond in kind. Consider too that this person(s) may genuinely, however unlikely, be ignorant or unaware of the consequences of their actions. Remember, discrimination does not require intent.
Concurrently, I recommend contacting Human Resources in writing. This is helpful if the person who discriminated against you is your manager or superior or you are not comfortable confronting the person. At a minimum, contacting HR will alert them to the incident(s) but also support the delivery of training and learning to prevent future incidents. When contacting HR, be specific and provide details.
Redress
I recommend that you speak to a lawyer who can provide you with legal advice about your situation and redress. I also recommend that you look for a lawyer who practices employment and/or human rights law.
If you are looking for an employment lawyer, be aware that some lawyers practice both management and employee/union-side employment law, while others practice exclusively for employers or employees/union.
I further recommend investing the time to access and review the website of the human rights authority that is applicable to your employment. Remember, the type of industry where your employer is situated influences the human rights regime applicable to you. As an example, you may live in Ontario but if you work for a bank, your redress lies with the Canadian Human Rights Commission, not the Ontario Human Rights Commission.
The preceding items are not an automatic or step-by-step guide on what to do. The type, nature, and severity of any discriminatory act(s) that you experience can influence your response. If you are ever unsure about your rights or how to proceed, consult a lawyer.
If there a particular employment topic or issue that you would like me to address in a future article, let me know! You can reach me at: mathew.yaworski@stutter.ca. All correspondence will be treated as confidential.
Disclaimer: The opinions and statements in this article are solely the author’s and do not represent the Government of Canada or the Department of Justice Canada. Nothing in this article should be construed or relied upon as legal advice or opinion. Consult a lawyer for specific advice concerning your situation.
Mathew Yaworski, BCL/JD, is the CSA's Employment Advocacy Coordinator. Mathew is a litigator for the Government of Canada practicing management-side labour and employment law. Before receiving his law degree, Mathew held senior positions in human resources (labour relations) with various public sector employers.