A case of racial discrimination at work is about to be brought down to psychological harassment in the courts. Denying the “racial” dimension of the harassment suffered only once again obscures the racism existing in several workplaces, believes the organization that supports the victim in his complaint filed with the Commission des normes, de l’assurance, occupational health and safety (CNESST).
Black-skinned woman, Tania, who keeps her real name so as not to harm her file, has been on sick leave since 2016. According to her, her boss made her experience hell in the CHSLD in the region where she worked as proposed benefits. She comments on her hair extensions and asks him in front of all her colleagues if she is washing them. “She keeps smelling my hair and looking at me askance,” the complaint said.
It had a major psychological impact on her. She endured it for months.
This same boss pushes her to do double shifts, makes her make repeated replacements and does not pay her public holidays in the same way as her colleagues, taking advantage of her ignorance of the laws. “She makes disparaging comments about my ex-husband and tells my coworkers not to sit where I sit because I’m dirty considering my relationship with him,” Tania said in the complaint. One day, when she is going to collect her pay stubs, she sees an inscription on the board of the care office. “I could no longer sit on the chairs in this office and the chairs that other employees used to give care. “
More than harassment
For Katia Atif, from the organization Action Travail des femmes (ATF) which supports Tania in her efforts, in this whole story, there is clearly “race-based segregation”. “It had a major psychological impact on her. She endured this for months, ”she says.
Mme Atif regrets that this file is now being treated as a simple complaint of psychological harassment when it is much more complex. “When an employer segregates on a racial basis, we are in something other than psychological harassment. “
If nothing is dealt with on this basis, there will be no case law, judgments or statistics on racism in the workplace, she believes. “It perpetuates what is said in some media, that there is no racism or sexism in Quebec,” she said.
It was in 2004, when the provisions on psychological harassment entered into the Law on Labor Standards, that the complaints of discriminatory harassment normally dealt with by the CDPDJ were quietly transferred to the CNESST. “So all the data on racial harassment is lost,” says Mme Atif.
In 2018, the Labor Standards Act was amended to include the “sexual” aspect in psychological harassment. But nothing has been achieved for the “racial” dimension.
Sensitive to the question, the CDPDJ and the CNESST signed an agreement last year so that the first sensitizes the second to take into account the grounds of discrimination (age, race, disability, etc.) in the treatment of complaints of psychological harassment . “When two autonomous organizations decide to collaborate, it is more than symbolic,” recognizes Lucie Lamarche, professor of law at the University of Quebec in Montreal (UQAM).
Racial tensions seen from Homework
Settle fast, a heavy trend
However, despite these good intentions, it is difficult to combat a heavy tendency to want to settle a case quickly and efficiently, which is one of the strengths of the CNESST when it defends its cases before the Administrative Labor Tribunal (TAT).
“At the CNESST, they work fast, break regulations. For [les avocats], enter the racial dimension, a vague and open concept, where the testimonies are likely to be contradicted and the proof, more difficult to make, it is more disturbing than to plead the psychological harassment. It is not that these people do not believe in racial discrimination, it is that they do not need it to resolve the matter, “said Mme Lamarche.
“We live in a world where everything is easier to denounce than discrimination, and that’s a problem. “
The Human Rights Commission, which does not comment on complaints being processed to respect confidentiality, reminded the Ofsee that the TAT “has the same remedial powers as the Human Rights Tribunal” and that it is possible to “plead the provisions of the Charter”.
In 2018, in the Caron judgment, the Supreme Court effectively reminded the CNESST and the TAT of their duty to deal with a complaint under the Charter of Rights and to plead for recognition of moral and punitive damages. “They still aren’t,” says Katia Atif.
The other heavy trend is to settle everything in mediation.
“That’s it, the drama. The culture of amicable settlement is so strong that there is almost no case law. Without that, it is certain that we cannot contribute to education in the workplace on what racial discrimination is. Silence never pays off, says Lucie Lamarche. Racial discrimination in everyday work lives on, no matter what our Prime Minister says. “
The Standards, Fairness, Occupational Health and Safety Commission was unable to answer questions from the Duty, indicating that it was difficult to comment on current files. Tania’s case, which was scheduled to be heard in April, has been postponed due to the pandemic.