Published: December 2004
(Please note: The views and opinions expressed by the author are their own and do not necessarily reflect those of the Ontario Human Rights Commission.)
by Bill Black
Bill Black is a professor at the U.B.C. Faculty of Law. He was a member of the Canadian Human Rights Act Review Panel and in 1994 wrote a Report on Human Rights in British Columbia. He is a former director of the University of Ottawa Human Rights Research and Education Centre.
This paper identifies some of the reasons why complaints of race discrimination have a lower success rate than complaints on other grounds. It then presents a variety of options that might be considered at different stages of the complaints process, with the goal of improving the success rate.
Studies in many jurisdictions have indicated that complaints alleging discrimination on the basis of race and related grounds have a lower success rate than cases considering other grounds.[1] The fact that similar results occur in different jurisdictions suggests that the causes go deeper than some simple error in handling such cases. The purpose of this paper is to try to identify some of those causes and to present possible strategies for increasing the success rate. My goal is to identify as many strategies as possible, rather than to try to identify some new solution that has eluded everyone else. I simply want to start the discussion.
There does not seem to be any single cause for the lower success rate of complaints of race discrimination. Ana Mohammed, who is now a member of the B.C. Human Rights Tribunal, prepared a report in 2000 comparing a selected sample of race complaints (all of which included racial harassment) with a comparable sample of sexual harassment complaints. She concluded that the lower success rate of race complaints was due to a combination of two factors. The first was that, on average, complaints of race discrimination were more difficult to substantiate. The second was that the procedures for processing complaints are not always well suited to the nature of complaints of race discrimination. Donna Young reached similar conclusions in her 1992 study for the Ontario Commission. I agree that both factors have an effect on the success rate.
Mohammed found that complaints of race discrimination are more likely to involve an ongoing course of conduct, rather than a specific incident. She also found that the discrimination often takes more subtle forms in race cases than in sexual harassment cases. In addition, a respondent is unlikely to admit that race played any part in a decision. In contrast, in cases involving other grounds such as disability, for example, a respondent will sometimes admit that the events took place but argue that a defence is available.
Ironically, the fact that race discrimination may attract a higher degree of social stigma than discrimination on some other grounds, such as age, may make it harder to prove a case in two ways. The first is that perpetrators are more careful to hide race discrimination than other forms of discrimination. The second is that there may be an unconscious tendency of decision makers (whether intake officers, investigators, Commission members or tribunals and courts) to apply a higher standard of proof to allegations of race discrimination than to other grounds.
Another factor may be that the strongest cases do not necessarily result in a complaint to the Commission. Some of those who experience the discrimination may accept the situation as a coping strategy.[2] Moreover, if racial discrimination is an ongoing feature of a workplace, it may seem futile to file a complaint about any particular incident. It seems likely that these tendencies would be more common in situations of serious ongoing discrimination than when the discrimination is less prevalent. The result would be that the complaints process may tend to exclude a disproportionately high percentage of the most serious cases.
A final factor may be that the human rights enforcement system has not yet fully applied an adverse effects analysis. The Supreme Court of Canada recognized adverse effects discrimination almost twenty years ago.[3] However, most cases classified as adverse effects cases involve facts bordering on intent, such as the maintenance of certain business hours, even after being informed that they will interfere with the religious beliefs of some employees.[4]
A broader adverse effects analysis would start from the assumption that if a group is not represented in a workplace or other establishment in the numbers one would expect on the basis of availability, that this alone is enough to create a presumption that the selection system incorporates some discriminatory barrier. Such an analysis would, of course, be relevant to any ground of discrimination. But it may be especially relevant to complaints of race discrimination, because they are often more difficult to prove by other means.
This section lists different possible strategies for handling complaints. As mentioned in the introduction, my aim is to raise possible options for the purposes of discussion rather than to identify some optimal mix of strategies.
In a complaints-based system, the Commission has limited power to influence what complaints are filed. However, the following steps might help to bring serious instances of race discrimination to its attention:
Because complaints of race discrimination often involve subtle and hidden sources of discrimination, there is a danger that a disproportionate number will be screened out prior to a full investigation. I recognize that screening is needed, but such screening should take account of the fact that further investigation may reveal evidence that would support a complaint that on its own seems weak:
I have no specific suggestions regarding the mediation process other than to try to guard against power imbalances in the process. Also, if there are indications that a respondent is willing to offer a generous settlement to a complainant with a strong case in order to avoid systemic change, the Commission might consider a separate complaint regarding the systemic aspects of the situation.
There is some controversy about mediation as part of the human rights process. Some critics question the compatibility of the process with the public interest obligations of human rights commissions.[11] On the other hand, mediation can have positive benefits to the parties and can help reduce the backlog problem. It also may sometimes serve public interest concerns in a way that would be difficult to achieve at a hearing.[12]
One key to a fair and effective investigation is to avoid any unconscious tendency to apply a higher standard of proof to complaints of race discrimination than to other grounds. A second goal should be to tailor investigative techniques to the particular challenges of race complaints. Some more explicit strategies are listed here. Many of these strategies also apply to other stages of assessing a complaint (for example, intake and consideration whether to refer the complaint for hearing):
I have no specific options to raise concerning this stage of the process. However, many of the items listed with respect to investigations (e.g. the unconscious tendency to apply a higher standard of proof to race complaints) may also be a risk at this stage.
My one comment about the consideration of complaints by the Tribunal and the courts is that it would be useful to argue for a body of law that takes account of the prevalence of race discrimination and the special challenges of proving such discrimination. An appropriate standard of proof is key. Recognition of the legitimacy of statistical evidence and similar fact evidence would also be useful. Because the law applicable to hearings goes beyond the scope of this paper, I will not develop these points fully.
I hope that the above points will contribute to the dialogue at this conference and look forward to the comments of those who have greater “hands-on” experience than I do.
[1] See, e.g., Ana Mohammed, Report on the Investigation of Race Complaints at the B.C. Human Rights Commission, (2000) unpublished report; Errol Mendes, ed. Complaint and Redress Mechanisms Relating to Racial Discrimination in Canada and Abroad (Ottawa: Human Rights Research and Education Centre, 1994); Donna Young, The Handling of Race Discrimination Complaints at the Ontario Human Rights Commission (Toronto: unpublished paper for Commission, 1992).
[2] Ian Mackenzie, “Racial Harassment in the Workplace: Evolving Approaches” (1995) 3 C.L.E.L.J. 287, at 291.
[3] Ontario Human Rights Commission v. Simpsons-Sears [1985] 2 S.C.R. 536.
[4] See Mackenzie, above note 4 at 297 citing a tendency to focus on intent or malice.
[5] Mohammed, above note 1 at 26.
[6] Mohammed, above note 1 at 25, recommends this step.
[7] It is possible that respondents would object to such a policy, but I do not think that it is unfair to use the results of one complaint as the basis for filing a broader complaint.
[8] Mohammed, above note 1 at 17.
[9] News Release, : Commission to Implement New Self-draft Complaint Process, Sept. 29, 2004, online: http://www.ohrc.on.ca/English/news/e_pr_2004-complaint-process.shtml, accessed Nov. 1, 2004
[10] Online: http://www.ohrc.on.ca/English/consultations/intersectionality-discussion..., accessed Nov. 1, 2004.
[11] See Philip Bryden and William Black, “Mediation as a Tool for Resolving Human Rights Disputes: An Evaluation of the B.C. Human Rights Commission’s Early Mediation Project”, (2004) 37 U.B.C. L. Rev. 73 at 86-91 discussing the different views about this issue.
[12] Interview with members of the B.C. Human Rights Tribunal, Aug. 31, 2004, in which it was said that mediators were sometimes able to achieve agreement on systemic changes during mediation that would have been difficult to achieve as a result of a Tribunal order after a hearing.
[13] See Frances Henry and Carol Tator, “Myths and Realities of Racism in Canada” in Beinvenue and R. Goldstein, Ethnic Groups in Canada (Toronto: Butterworths, 1985) 321, at 328; Constance Backhouse, Colour-Coded, A Legal History of Racism in Canada 900-1950 (Toronto: Osgoode Society for Canadian Legal History, 1999) at 15; Young, above note 1 at 6-10.
[14] Mohammed found such a tendency in the files she assessed; above note 1 at 18. I have no information about whether this applies to O.H.R.C. investigations.
[15] Mohammed, ibid. refers, at 20-21, to the “Squeaky Clean Complainant Syndrome.”