Employers can be held liable for the unconscious bias of employees

The killing of George Floyd has brought issues of racism and discrimination to the forefront in recent weeks. While the focus has been on the United States, a survey conducted by Environics Institute for Survey Research has found that one in five Canadians experiences discrimination regularly. Forty percent of those who experienced discrimination said they experienced racial discrimination at work.

To prevent racial discrimination in our workplaces, employers need to look at it in all of its forms, including conscious and unconscious biases. Most discrimination today comes in subtle forms which are difficult to prove but no less harmful to those experiencing it.

In a recent Human Rights Tribunal of Ontario decision, Graham v. Enterprise Rent A Car Company Canada, the Tribunal tackled a case of subtle discrimination. The applicant, a Black woman, was refused a rental car after she was requested to provide additional identification when picking up the rental. According to the rental company’s policy, all the customer needed to show was one piece of photo identification and a valid driver’s license, but when she arrived at the rental location, the customer service representative asked for a second piece of identification. The customer provided an Ontario health card, which the representative refused because it was not acceptable identification. Another representative commented that additional identification was required because the company had encountered many car thefts. The customer felt she was dismissed by the representatives when she requested further clarification. Eventually, she was refused the rental car.

The rental company argued that the customer was refused the rental because she was aggressive, visibly agitated, and yelling loudly. It defended its request for additional identification by arguing that some of its locations require additional identification.

The Tribunal did not accept the rental company’s arguments. It decided that the request for further identification was unjustified and motivated by unconscious bias, particularly since the representative did not feel he owed the customer a more detailed explanation of why the identification was necessary. The Tribunal stated:

Based on all these facts, I find that the [customer] was subject to discrimination and unconscious bias… anti-Black racism and its subtle manifestations are well-recognized in Canadian law, including the recognition that a Black person can be treated adversely by a service-provider because of a conscious or an unconscious stereotype.

Significantly, the rental company’s representative never explicitly stated that he was requiring more identification from the customer because she is Black and may not have been deliberately targeting her for unequal treatment. However, he required the additional identification, refused to provide a proper explanation, his coworker raised a risk of car thefts, and the rental company ultimately refused her service for being “angry”. Based on these facts, the Tribunal drew an inference that anti-Black discrimination, which often includes subtle forms of discrimination, influenced the company’s decisions. The Tribunal decided that the company’s refusal of service to the applicant was as a result of racial stereotypes, as the Tribunal put it, “of Black people as being prone to violence and criminal behaviour.”

Takeaways

It is important for employers to recognize that racism and discrimination can come in many forms and need not be overt or intentional. Since an employer can be held liable for an employee’s biased actions, employers should train employees on discrimination, including the role of subtle forms of discrimination such as microaggressions and unconscious bias. Employers should maintain adequate policies that address discrimination and racism in the workplace and review and update those policies at least annually. Finally, employers should foster an inclusive environment where employees feel welcome to bring forward instances of discrimination, bias, and harassment.