Between 2017 and 2019, there were 100 hate crimes reported to the police against Indigenous Canadians, 696 against Muslims, 783 against all Asians combined (many of whom were Muslim), 951 against Blacks and 1,028 against Jews as the victims, according to Statistics Canada.

In relative terms, the hate crimes against Jews are vastly greater as there are more than three times the number of Muslims as Jews in Canada, over four times the number of Blacks and over five times the number of Indigenous Canadians. The chance of a Jew being the victim of a hate crime is astronomically greater than that of anyone else. It has become worse since then.

This reality is surprising to many Canadians, including some Jews, who never considered themselves as disadvantaged.

In fact, many Jewish Canadians, like others, are of modest means and, not merely equally, but to a greater extent, subject to discrimination, including in employment.

Events like the recent war in Gaza resulted in an eruption of workplace racism toward more vulnerable Jewish members. And, of course, policies such as Boycott Divestment and Sanctions (BDS) against Israel is often just anti-Semitism under a politically correct mantra.

After all, are Israeli policies really so much worse than those in such autocratic outposts as Iran, North Korea, China, Afghanistan, etc. that it should be the only one worth calumnizing on college campuses, unions and even companies like Ben and Jerry’s? Generally, anti-Semitism has been sanitized in different forms throughout history. This decade’s approach is BDS.

The increasingly de rigueur compulsory equity diversity inclusion seminars at Canadian workplaces are discomforting for many Jewish workers at being lumped in as part of the white overclass who purportedly never experiences discrimination, but only practices it.

I have my own views on these often ideologically tinted seminars, run often by radical “woke” leftists, as I have discussed previously.

But moving on from this introductory shout-out to Jews, this column is a toolkit for anyone faced with workplace racism.

What can you do if you experience racism in the workplace?

You can file a grievance if you are in a union or a harassment complaint if not, pursuant to the anti-harassment policy that employers are required to have as part of the Occupational Health and Safety Act legislation.

You can file a complaint under the applicable human rights regimen in your jurisdiction.

You can resign and file a constructive dismissal claim if your complaint is so toxic that a court would conclude that no person ought to put up with it further. Before doing any of this, you should decide whether it makes sense to first complain to your manager or human resources. That will depend in part from whom the discrimination arises. That should always occur first if the racist comment or conduct was that of a coworker rather than someone in management. If it seems unlikely to resolve, then you might wish to file a claim without waiting.

What else can you sue for?

In addition, there are little known actions which might provide further legal leverage. They include claims for intimidation, intentional infliction of mental suffering, conspiracy to injure and defamation.

Sometimes one sues because they have little recourse. But my view is that people facing genuine racism in the workplace — if they have the requisite stamina — should consider these legal actions, not merely for damages but to make a point politically to force those unions and companies who are offside to change their culture.

What if you are unionized?

What do you do if you are in a union and do not have this panoply of remedies available to you?

In my experience, your choices are dire. You have to grieve but what if the union does not take your case? Although you can file a duty of fair representation case to the labour relations board, the historic prospects of those cases being successful are minuscule. Unions are deemed by the jurisprudence to be inexpert bodies run by laypersons. They are entitled legally to make mistakes and, as long as they can prove that they put their mind to it and that their decision was not riddled with arbitrariness, discrimination or made in bad faith, the union will succeed. And bad faith can be hard to prove.

What else can a disenfranchised union member do? Not much. They can, if they can obtain majority support, decertify the union, as I have discussed previously, or they can run on a slate with others to depose the current union executive and change its policies. Both are generally unlikely to succeed.

What if the discriminatory policy is from the union itself?

You can make an application in line with human rights legislation.

One other approach is to lobby governments dealing with public sector unions if they adopt BDS or other objectionable policies, as some unions have, to bargain for the removal of such clauses as a term of the next collective agreement.

After all, most unions focus more on higher wages than political statements. Such lobbying can be organized whenever a public sector union adopts policies that its members are affected and offended by. And you will have support beyond members of that union from anyone offended, since you are lobbying the government itself.

What if the employer takes a political position you feel is hostile to you on human rights grounds?

At the very least, you can file whatever grievance procedures there are internally to focus your employer on the fact that you view the policy as offensive to your ethnic or racial group and lobby to change that policy. If the policy creates an atmosphere in the workplace, which impacts on your work life as a member of a specific group, you may have a human rights or constructive dismissal claim, which, in Ontario, can be combined in one civil action.

What if the employer calls for a workplace investigation?

Sometimes employers will respond to a complaint of racism by starting a workplace investigation. Sometimes they do this honestly, not knowing what had transpired and genuinely wishing to find out what occurred, get to the best result and remediate.

Other times it is a delay intended to develop their own statement of defence and get their public relations plan in place in advance of any statement of claim being issued or of the public learning of the issue. If it is the latter, strategically, you should not permit that time and come out quickly with your statement of claim and own the media campaign if any, before the employer’s position is entrenched and it has had time to remediate its reputation.

You should also investigate the background of their chosen “investigators” to learn if that person has expressed any opinion on the topic.

In one recent public dispute about anti-Semitism, the investigator had historic tweets indicating a bias. The fact that the investigator is a lawyer does not, as they will claim, guarantee that they are objective and open minded.

In my experience, many, perhaps most, investigators are hired guns, looking to be reappointed for further lucrative investigations, which require little legal knowledge and skill. Their reports have no weight with courts as they are inherently hearsay and the judge must and will come to his or her own determination after observing the witness testimony.

If the investigation report is against you, you should respond immediately with the following: note any bias of the chosen investigator, their historical financial involvement with that employer, witnesses they failed to interview, misapprehensions of the facts or law, the inherent improbabilities of their conclusions and the fact that they disregarded the evidence of those witnesses whose evidence they did not list.

An employment lawyer should assist you with that rebuttal. But remember, much as an employer may try to wrap themselves around that report as it sanitizes its conduct, the findings of an investigator are totally irrelevant as the court comes to its own conclusions.

I find that internal employees, in human resources, will get a better result and more quickly, since they have no financial incentive to drag the process out, and already know the players and the company’s policies. In the rare circumstance that an external investigator is desirable, use a retired judge who has credibility and is trained in ascertaining facts and who will have the respect of all stakeholders.

BY HOWARD LEVITT

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 HERE: https://financialpost.com/fp-work/howard-levitt-what-to-do-if-you-experience-racism-in-the-workplace