Can You Skip Diversity Training if You Feel it has Become Too Ideological?

Wouldn’t that be ironic? A human rights challenge against an initiative designed to protect against such complaints.

Employer-mandated equity, diversity and inclusion (EDI) training is not new, but has dramatically proliferated. It is an increasingly lucrative industry, ubiquitous in medium-to-large corporations and organizations. Most hearts are in the right place in pursuing these initiatives, which also carry the collateral benefits of some protection against discrimination lawsuits, as well as signalling the organization’s social justice bona fides.

But the EDI field is being penetrated as well by some with ideological agendas and others looking to capitalize monetarily. There are many credible organizations involved in training, but employers should beware of others looking to cash in on the associated fees for relatively little work.

As EDI expands, I have seen it evolving. Until recently, it focused on legitimate training to recognize potential biases, avoid discriminatory behaviour and fully accept and incorporate individuals from marginalized groups into the organization — all entirely worthy goals. But under the branding “anti-racism” training, some of these programs are becoming increasingly ideological. Who would disagree with anti-racism training? But as they flip past the title, some employees may find the course materials uncomfortable, even offensive.

The vast majority of employees, whatever their personal reactions, attend the workshops without complaint. Some may experience discomfort, annoyance, cognitive dissonance and perhaps even resentment toward their employer. But they keep it to themselves or only confide in a trusted colleague. Who can blame them? People are generally disinclined to risk their livelihood over a disagreement on principle.

However, as some cultural sensitivity training becomes infused with ideological doctrines like critical race theory, more employees could approach their line in the sand. Some employees may wonder, ‘Can my employer force me to attend these workshops? What happens if I refuse?’

The answer to the first question is “of course not.”  Fortunately, we do not live in a society where an individual can be strapped to a seat, eyelids clamped open, a la The Ludovico Technique in A Clockwork Orange.

The more poignant question is the second.

Subject to human rights law, an employer can terminate an employee for any reason as long as they provide the employee with sufficient severance. If an employee objects to company-mandated training, it would amount to insubordination and the employer could assert “just cause.” If there is just cause, the employee would not be entitled to severance, a loss in some cases of tens or even hundreds of thousands of dollars. Whether a refusal to attend anti-racism training constitutes legal cause depends on the particular facts.

Could an employee rely on human rights legislation to save their job? That would be an uphill climb. The Ontario Human Rights Code, for example,protects against discrimination based on “creed.” However, this ground was only intended to apply to religious belief, although the Ontario Court of Appeal left open the possibility that it could be invoked to include a political ideology.

But what if the employee objecting to the training is a visible minority? Critical race theory, in some forms, also teaches that “the written word”, “perfectionism”, “individualism” and “objectivity” are white European values. Some people of colour may find such a construct insulting. Or to utilize human rights parlance, they may find such instruction to be “vexatious” or “unwelcome”.

These employees could find themselves on firmer ground to refuse the employer-mandated training orto bring a human rights claim if required to attend.

And wouldn’t that be ironic? A human rights challenge against an initiative designed, at least in part, to protect against such complaints.

By Howard Levitt

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. 

THIS ARTICLE ORIGINALLY APPEARED IN THE FINANCIAL POST AND IS REPRODUCED HERE WITH PERMISSION FROM THE AUTHORS: https://financialpost.com/fp-work/can-you-skip-diversity-training-if-you-feel-it-has-become-too-ideological?video_autoplay=true

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