Last week, an incident at the BAFTAs sparked significant public discussion about disability, intent, and harm. During the ceremony, an individual with Tourette syndrome shouted a racial slur while two Black presenters were on stage.

For many of those who attended the BAFTAs, the incident would likely have been considered a work-related event rather than a purely social setting. This article examines the legal obligations Canadian employers face if a similar incident occurs in the workplace or at a work-related function.

In Canada, employers have overlapping legal obligations that can create complex and competing challenges in circumstances like this. On the one hand, disability is a protected ground under human rights legislation. On the other hand, employers must ensure that the workplace is safe and free from harassment for all employees.

The Duty to Accommodate

Across Canada, human rights legislation requires employers to accommodate an employee’s disability when necessary. Tourette syndrome is widely recognized as a disability under human rights law, which may trigger accommodation obligations. Employers must avoid assumptions about an employee’s disability or symptoms. For example, only a minority of individuals with Tourette syndrome experience coprolalia (involuntary swearing or offensive vocalizations) and not all vocalizations are harmful or socially inappropriate.

Where an employee’s conduct is connected to a disability, employers have a duty to accommodate to the point of undue hardship. Accommodation may involve modifying duties, adjusting workplace practices, or providing workplace supports that allow the employee to continue contributing safely.

Importantly, when behaviour is involuntary and connected to a medical condition, traditional disciplinary approaches may not be appropriate in the same way they would be for intentional misconduct. Human rights decision-makers across Canada have recognized that conduct linked to a disability requires a contextual and individualized assessment, particularly when workplace policies are implicated.

However, the duty to accommodate is not absolute, and undue hardship includes health and safety considerations.

The Duty to Maintain a Safe Workplace

Employers are also legally required to maintain workplaces that are safe and free from harassment. Occupational health and safety legislation in most jurisdictions, including Ontario, requires employers to take reasonable steps to prevent and address workplace harassment and violence.

Across Canada, human rights legislation imposes proactive and reactive obligations on employers to address discriminatory harassment and poisoned work environments. This means employers must not only refrain from discriminatory conduct themselves, but also take steps to prevent and address discriminatory behaviour by management, employees, and, in some cases, third parties.

A poisoned work environment occurs when discriminatory comments or conduct create a hostile or degrading workplace. It can arise from a single incident, and the conduct does not need to be directed at a specific individual. Employers who fail to take reasonable steps to stop such behaviour when they know or ought reasonably to know about it risk liability.

Comments involving racial slurs—regardless of intent—are deeply harmful and constitute discriminatory harassment. In Canadian human rights law, the analysis focuses primarily on the impact of the conduct rather than the intent behind it. Even when conduct arises from a disability and is involuntary, employers cannot ignore the effect on other employees.

Employees who are the target of discriminatory language may experience psychological harm and erosion of workplace safety. As a result, employers must balance two legitimate and competing interests: accommodating the disability of the employee who caused the harm while protecting other employees from harassment and maintaining a psychologically safe workplace.

Investigating the Incident

If a similar incident occurs in a workplace or at a work-related event in Canada, employers should act promptly and reasonably. One of the first steps should involve a risk assessment to determine whether it is necessary to separate the individuals involved or place the employee who caused the harm on paid administrative leave.  

Employers should determine and assess what was said, the surrounding circumstances, whether the conduct may be connected to a disability, the impact on others, any policy breaches, and any statutory or policy obligations triggered. This may involve obtaining limited and relevant medical information, where appropriate, to understand any functional limitations relating to the disability.

Special Considerations

Where the conduct is connected to a disability, accommodation may be required. However, employers must weigh accommodation against the risk of recurrence and the impact on other employees.

Accommodation may involve reducing direct interaction with colleagues, modifying duties, providing remote work, or implementing supports to manage disability-related symptoms. While discipline may still be considered depending on the circumstances, disability-related behaviour can be a significant mitigating factor. Importantly, accommodation extends beyond duties to include the investigative process, corrective action, and workplace restoration efforts.

The BAFTAs was criticized for its apology (“We apologize if you were offended”), its failure to censor the racial slur before the program was aired, and its failure to reach out to the Black presenters after they presented. Employers can learn from this by responding promptly, acknowledging the impact on those affected, and taking active steps to support both the employees harmed and those whose conduct is linked to a disability.

Key Takeaways

Situations involving discriminatory or harassing conduct that stem from or are coloured by disability are inherently complex. Employers should consider the following best practices:

• Balance Interests and Engage in a Contextual Analysis: Avoid reacting hastily. Do not dismiss incidents because there was no intent, or immediately discipline the employee without assessing all circumstances. Conduct a contextual review and determine whether non-disciplinary or proportionate disciplinary measures are appropriate.
• Take Steps to Protect Employees: Even if harm was unintentional, employers must recognize the impact on employees who were targeted or witnessed the conduct. Measures may include supporting affected employees, reinforcing workplace expectations, offering counseling resources, and clearly communicating zero tolerance for discrimination and harassment.
• Assess What Accommodations are Necessary at Each Stage: The duty to accommodate continues throughout the employment relationship, including during an investigation and corrective actions. Employers should regularly review accommodations to ensure they are effective and adjust as circumstances evolve.
• Ensure the Investigator is Equipped for Complex Cases: For incidents involving disability-linked behaviour and harassment, consider engaging external investigators or providing internal investigators with specialized training. Flawed investigations risk undermining findings and corrective actions, and may expose the employer to liability.
• Engage in Workplace Restoration: Employers should take active steps to rebuild trust and psychological safety, including follow-up meetings, reinforcing anti-discrimination and anti-harassment policies, and offering team support or mediation where appropriate.

By following these practices, Canadian employers can respond to complex incidents involving disability and discriminatory and/orconduct in a manner that respects employees’ rights, maintains workplace safety, and mitigates legal risk.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.