A decision by the Human Rights Tribunal of Ontario (“HRTO” or “Tribunal”) affirmed that although an applicant may assert discrimination under the Human Rights Code [Code] because of an investigator’s conduct during the investigation process, there needs to be evidence of a link between the alleged conduct and the Code-based ground(s) of discrimination.
The applicant filed an application to the HRTO alleging that the respondent employer did not accommodate her disability in the workplace, including by not providing her with commissions that her male counterparts received, and terminating her employment because she disclosed her disability, requested accommodation in the form of sick leave, and requested a raise and unpaid commissions.
The employee also filed a complaint with the Ministry of Labour (“MOL”) prior to the HRTO proceeding, which resulted in an Employment Standards Officer ordering the employer to investigate the employee’s complaints of workplace harassment. The employer subsequently engaged a third-party investigator to conduct the investigation, and when the investigator asked the employee to confirm whether she would require any Code-related accommodations, the employee asserted her right to record the interview. The employee proceeded to question the investigator’s credentials, and ultimately refused to participate in the investigation.
In her HRTO application, the employee further alleged that the MOL, the employer, and third-party investigator failed to accommodate her during the investigation process by refusing to allow her to record the meeting between the investigator and herself. The employee also alleged that the employer’s refusal to allow her to record the investigation meeting was an act of reprisal in relation to the employee’s MOL complaint.
The HRTO held that the employee failed to provide evidence which demonstrated a nexus between the investigator’s conduct and the alleged grounds of discrimination under the Code. Due to the employee’s failure to establish this nexus, the HRTO found that there was no reasonable prospect that her allegations would success.
The Tribunal acknowledged that the investigator in this case was prepared to offer the employee copies of the notes that were taken during the interview as an alternative accommodation to providing a recording. The question of whether there is a duty to accommodate requests to record the interview, however, remained unanswered in this decision.
Takeaways for Employers
The HRTO decision serves as an important reminder that allegations of discrimination against an investigator can be brought by an individual who is participating in the investigation process. Where an employer conducts an internal investigation into complaints of harassment or discrimination, the procedural duty to accommodate should be kept in mind where a participant makes a request for accommodation.
The procedural duty to accommodate requires, at minimum, that a further inquiry is made into the details underlying an employee’s accommodation request. Subsequently, where an investigator confirms that a participant requires an accommodation during an investigation interview based on a protected ground under human rights legislation, appropriate steps should be taken to modify the interview process to provide the participant with a reasonable accommodation, to the point of undue hardship.