By Alix Herber
Inadequate investigation of employees’ discrimination complaints can expose employers to human rights damages. This is so even when employers do most things right.
In the recent case of Ibrahim v. Hilton Toronto, the Human Rights Tribunal of Ontario ruled after a nine-day hearing that while the employer did respond appropriately to some complaints of harassment, its failure to properly investigate all the allegations was a violation of the Ontario Human Rights Code. The employer was ordered to revise its harassment policy, to engage an expert to conduct human rights training, and to pay damages of $5,000.
What happened
Tarek Ibrahim, a cook at a downtown Toronto hotel, repeatedly brought forward complaints of harassment. He first complained to the director of human resources that coworker A was yelling and swearing at him when he attempted to convey instructions from the executive chef.
But coworker A complained that Ibrahim was making derogatory remarks about other employees’ religions, backgrounds, and sexual orientation. He alleged that Ibrahim said, “Why are you talking to that Hindu?” and “Why are you talking to him, he’s Jewish?”
The human resources department completed an investigation. It concluded that both Ibrahim and coworker A had acted inappropriately. Ibrahim was suspended for five days.
Before serving his suspension, Ibrahim complained that coworker B had made offensive comments that he was “gay,” “a pedophile,” and about his Islamic religion. Ibrahim refused to cooperate with the human resources investigation. The employer then stated it was unable to substantiate his claims.
A couple of months later, Ibrahim complained to his boss that there was graffiti in the staff washroom containing offensive sexual innuendo about him. Ibrahim tried to remove the graffiti only to have it reappear in larger letters. The hotel removed the graffiti a few months later.
The employer denied that it had discriminated against Ibrahim. It said that it had conducted all investigations fairly and reasonably and that it took steps to remove the graffiti once it was brought to its attention.
Decision
While the employer had partial success in defending its handling of these matters, the tribunal still ruled that it failed to properly investigate the complaints of Ibrahim about coworker B. The human resources director improperly found the allegations were unsubstantiated without questioning coworker B despite strong indications from other coworkers that there existed an environment where inappropriate comments were regularly made among employees.
The tribunal also found that the employer did not take sufficient steps to remove the graffiti. Nor did it take preventive steps by posting a notice of the consequences of such conduct.
The tribunal awarded Ibrahim $5,000 for injury to his dignity, feelings, and self-respect. Given the evidence of discriminatory behavior and offensive comments by a number of employees as well as a lack of understanding of human rights law on the part of management, the vice-chair also ordered that the employer retain an expert to provide human rights training and to revise its harassment policy.
Lessons for employers
While investigating repeated complaints involving coworkers can be time intensive and complex, this case shows the importance of conducting proper investigations. Employers should:
- Confirm employees are aware of existing policies regarding harassment and discrimination;
- Ensure that your complaint procedure is appropriate;
- Ensure employees are trained on harassment, discrimination, and respect in the workplace;
- Ensure that an appropriate, neutral investigator is chosen;
- Take each complaint seriously, respond promptly, and investigate each of the allegations made; and
- Ensure all the facts are evaluated in coming to a reasonable resolution and ensure the complainant is informed of the outcome of the investigation.
