Unconscious Bias Training – proceed with caution

Brown-Progress-graphicDefinition – Unconscious bias refers to the biases we have of which we are not in conscious control. These biases occur automatically, triggered by our brain making quick judgments and assessments of people and situations based on our background, cultural environment and our experiences.

Over the last few years there has been a marked increase in discussions about, and an industry developed around, the concept of “unconscious bias”.  Also referred to as “Implicit bias”, as evident from the definition above, the concept is that our brains form fast judgments and assessments without us being consciously aware that the judgments and assessments are being made.

The discussion around this subject has moved from the realm of social psychological theory, and grabbed hold in the mainstream of organizational Human Resources Departments, and within government and policy development agencies, including the Ontario Human Rights Commission.

These organizations and government agencies have set out to purportedly raise awareness in their respective constituents of the existence of unconscious bias, to train people to identify their own unconscious bias, and then train to correct these biases or avoid acting on them if they are deemed unfair or discriminatory (Using the Implicit Bias Test – “IAT”).

A simple Google search on the terms “unconscious bias” or “implicit bias” confirms a large industry of diversity consultants and trainers offering services to employers in these fields.

Google, Facebook, and Microsoft have all embarked on high profile training regimes to identify and stamp out socially negative unconscious biases in their workforce.

The Canadian federal Judicial Advisory Committees (the government appointed committees that vet and recommend candidates for judicial appointments in Canada) now require that all JAC members will receive training on diversity, unconscious bias, and assessment of merit.”

On December 2, 2016, The Law Society of Upper Canada, the organization that governs the law profession in Ontario, adopted a report entitled  Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions – November 2016.  In order to address what the Report identified as widespread racism in the legal profession and the Law Society organization itself, the Law Society undertook to provide unconscious bias training to law firms, lawyers, and other members of the legal profession under the section of the report entitled “Educating for Change”.

I have recently received inquiries from employer clients indicating that they have become aware of organizations undergoing unconscious bias training, and asking if there was a legal requirement to provide this type of training

The nobility of the exercise is clear.  However, there is no legal requirement and there is a body of academic research that indicates that the efficacy of the training may in fact be less than certain, and possibly harmful in exacerbating division.

The Law on Bias Training

There is no specific legal requirement that Ontario employers develop any policies or undertake any form of anti-discrimination, racism, or unconscious bias training.

Bill 168 introduced the requirement that Ontario employers maintain workplaces safe from violence and harassment.  Harassment is defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.  Workplace harassment can involve unwelcome words or actions that are known or should be known to be offensive, embarrassing, humiliating, or
demeaning to a worker or group of workers. It can also include behaviour that intimidates, isolates, bullies, or even discriminates against the targeted individuals. This necessarily includes an obligation to maintain the workplace free from harassment related to discrimination and/or racism.

Further, under the Ontario Human Rights Code, employers are responsible for any discriminatory act undertaken by any of their employees as against another person on the basis of a protected ground in the provision of services or employment (whether the act was intentional or not).  Discrimination can include harassment, which is defined as comments or actions that are unwelcome to you or should be known to be unwelcome. You have the right to be free from humiliating or annoying behaviour that is based on one or more Code grounds.”

In its attempt to fulfill its mandate of promoting the Code, and developing policies on how the Code ought to be interpreted, the Ontario Human Rights Commission has set out its opinion that in some cases racist “beliefs are unconsciously maintained by individuals and have become deeply embedded in systems and institutions that have evolved over time. Further, the Commission has the view that unconscious bias exists, and that training to identify bias and to discourage employees from acting on those biases is consistent with promoting a progressive workplace and a progressive interpretation of human rights laws.

In its 2005 publication “Policy and guidelines on racism and racial discrimination”, the Ontario Human Rights Commission stated as follows:

“Consider this:

In discussing racism, it is necessary to consider the unearned privileges, i.e. benefits, advantages, access and/or opportunities that exist for members of the dominant group in society or in a given context….P.13.”

Given that the policies are intended to be (and generally are) followed by the Tribunal and the courts, it is evident that identification and action on unconscious bias have been targeted by the government of Ontario and the Human Rights Commission as valid endeavours and hallmarks of progressive employers generally.

What Is the Scientific Opinion on the IAT and Unconscious Bias?

However, a canvass of scientific literature on unconscious bias and related training programs reveals not only that the scientific consensus may be unclear, but in fact, that the consensus is that unconscious bias cannot be identified in testing, and that any program designed to identify and then change outcomes with respect to unconscious bias can actually exacerbate existing bias.

Clinical psychologists including in a recent article in the Canadian HR Reporter “‘Equity’ fatal trap for human resources – Is unconscious bias training ‘an Orwellian nightmare, unsubstantiated by science?” have opined that the testing to identify unconscious bias is fundamentally flawed “and very difficult to distinguish from a familiarity bias or in-group preference“, and that “there is no evidence unconscious bias training programs actually reduce such bias, and some evidence indicates the problem is actually worsened.

(equity-fatal-trap-for-human-resources – pdf link to article).

In a January 2017 article in the Chronicle of Higher Education entitled “Can We Really Measure Implicit Bias? Maybe Not”, the author cited the following:

“Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures.  They discovered two things: One is that the correlation between implicit bias and discriminatory behaviour appears weaker than previously thought.  They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behaviour.  These findings, they write, produce a challenge for this area of research.”

“scientists don’t know how to measure implicit bias with any confidence and that they shouldn’t pretend otherwise.”

More importantly, apparently one (1) of the three (3) authors of the original research and design of the IAT has now publicly disavowed the research results and methodology.

In New York Magazine – Science of Us, Jesse Singal published “Psychology’s Favorite Tool for Measuring Racism Isn’t Up to the Job”

“Finally, there are hints which suggest that the race IAT could directly diminish the quality of certain intergroup interactions.  In a 2012 study published in Psychological Science, for example, the psychologist Jacquie Vorauer had a bunch of white Canadians complete a work task with an aboriginal partner.  Prior to doing so, some of the participants took an IAT pertaining to aboriginal people, some took a non-race IAT, and some were asked for their explicit feelings about the group.  Aboriginals in the race-IAT group subsequently reported feeling less valued by their white partners as compared to aboriginals in all of the other groups.  So while IAT proponents have suggested it could be used to improve intergroup relations, writes Vorauer, ‘if completing the IAT enhances caution and inhibition, reduces self-efficacy, or primes categorical thinking, the test may instead have negative effects.’

In short, unconscious bias training may make your workplace more biased.

It has increasingly become apparent that scientific consensus in this area is moving away from unconscious bias as an area where behaviour can be identified and modified, and towards a finding that unconscious bias training may cause more harm than good.

As employers rush headlong into the unconscious bias training world, encouraged forward by the industry and the recommendations of the Ontario Human Rights Commission, I would caution employers to review the literature on the subject, and the experiences of other employers, understanding that there is no legal requirement to undertake these efforts.

As Singal stated “Unless and until new research is published that can effectively address the countless issues with the implicit association test, it might be time for social psychologists interested in redressing racial inequality to reexamine their decision to devote so much time and energy to this one instrument.  So, contra Banaji (one of the authors and proponents of the IAT), scrutinizing the IAT and holding it to the same standards as any other psychological instrument isn’t a sign that someone doesn’t take racism seriously:  It’s exactly the opposite.”

While the objective of a diverse and inclusive organization is a noble one, it is apparent that employers may wish to explore other (and perhaps more effective) means to achieve the objective and to signify to the marketplace your organization’s embrace of these values.

Curious about the test? – you can take it here (with caution):

Jared Brown – Lead Counsel

 

 

 

Unpaid Bonus Limitations – some thoughts…

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Our client had been employed over a few years by a successful family operated business.  Notwithstanding that his compensation consisted of a base salary and large potential bonus, he did not receive bonuses on the level that he anticipated.

Our client did not receive anything in writing from the employer that would allow our client to determine the entitlement to a bonus or how bonuses were being calculated by the employer during his employment or after.

Our client was ultimately terminated without cause.

On bringing claim for the unpaid bonuses and wrongful dismissal, the employer brought a motion seeking to have a portion of our client’s claim for unpaid bonuses dismissed as falling outside the two (2) year limitation period.

The employer’s position was that because the claim was brought more than two (2) years after the date on which the bonus payments ought to have been made, the claim was out of time.

While we brought forward a number of factual issues that we believed made the employer’s position untenable (including the lack of clarity as to when the bonuses ought to have been paid, fraudulent concealment etc.), in our analysis of the case we were immediately struck by how these same facts would have supported a claim for constructive dismissal had the employer not ultimately terminated our client.

Any lawyer consulted with an unpaid bonus situation akin to this one (prior to the ultimate termination) would have likely advised the client of the ins and outs of the law of constructive dismissal, with the usual warning that such claims are very difficult to establish.

However, in examining the caselaw on unpaid bonuses it was interesting that almost all of the jurisprudence were in the context of constructive dismissal claims [Ilkay v. Acadia Motors Ltd., (2006), 276 D.L.R. (4th) 762 (N.B.C.A), Piron v. Dominion Masonry Ltd., 2013 BCCA 184 (CanLII), Landry v. 1292024 Ontario Inc., (2006) O.J. No. 1832 (Ont.S.C.J.].

Further, we understood that the limitation period for a constructive dismissal claim runs, not from the independent act(s) of repudiation by the employer, but rather on acceptance of the repudiation by the employee and their departure from the relationship

In light of this, it became immediately apparent that the employer’s intent to apply a two (2) year limitation period from the point that each individual bonus payment was not made would be manifestly unfair if a different result would be available to our client if the claim was one of constructive dismissal (ie. without an overt termination by the employer).

Using this approach we successfully persuaded the motions judge, and ultimately the Divisional Court on appeal, that consistency and fairness required that our client’s claim for bonuses unpaid potentially more than two (2) years prior to the claim should not be found to be outside the limitation period.

While it may very well be that this approach is ultimately not favoured at trial, in the context of a summary judgment motion and motion seeking leave to appeal, we managed to enlist support for what we believed to be the proper approach on these claims.

D. Jared Brown – Lead Counsel

Owed Unpaid Bonuses? Its Not Too Late For A Lawsuit

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Maybe you didn’t know you were entitled to a bonus. Maybe you didn’t want to have that potentially career killing conversation with your employer. These are just two of the reasons why you may not have pursued unpaid bonus amounts owing to you.

But how long is too long to wait? The Limitations Act, 2002 generally requires that you sue within two (2) years of discovering a claim. Does this mean you can’t recover against a current or former employer for bonuses you should have received more than two (2) years ago? Not necessarily.

In a recent motion before the Ontario Superior Court of Justice (leave to appeal denied by the Divisional Court), Brown Litigation persuaded the court not to dismiss our client’s claims for bonuses payable more than two (2) years before the start of the lawsuit. In agreeing to postpone the determination of the limitation period to trial, the court found the limitation period had not clearly expired and relied on the following cases:

Saltsov v. Rolnick[i] – The Limitation Period May Not Commence Until Resignation or Termination

In Saltsov, the court acknowledged that employees could not reasonably be expected to sue their employers while still employed with them, as doing so would negatively impact their employment.

The motion judge in our client’s case applied the law in Saltsov and stated that “it would have been neither workable nor fair to expect [our client] to have jeopardized his job by suing for bonus while still actively employed at [his company].” According to Saltsov, the limitation period for your unpaid bonus claims may be deemed to have commenced not when the bonuses were payable, but rather on the date of your resignation or termination.

Novak v. Bond[ii] – The Court Will Take Individual Circumstances into Account

The Supreme Court of Canada confirmed in Novak that individual circumstances can be considered in determining when a plaintiff should have known to sue. The court stated that, “in some cases, the plaintiff’s own circumstances and interests may be so compelling that it cannot be reasonably said that he or she could bring an action within the prescribed time period,” also noting that “people ought to be encouraged to take steps short of litigation to deal with their problems,” and “they should not be compelled to sue when to do so runs counter to a vital interest.”

The motion judge in our client’s case considered Novak in light of our client’s position as an employee of the defendant, and stated that “an employee is in a vulnerable situation and entitled to a subjective appreciation of his circumstances in connection with understanding his realistic and reasonable alternatives in responding to conduct and decisions affecting him or her.” Novak mirrors section 5(1)(b) of our Limitations Act, 2002, and the court accepted that our client may not have personally discovered that a claim was necessary to collect the bonuses.

Halloran v. Sargeant[iii] – Fraudulent Concealment Precludes a Limitation Defence

It is well established at law that defendants cannot rely on the limitation defence where they have engaged in fraudulent concealment. In Halloran, the court ruled that an employee’s claim for termination pay was not out of time due to fraudulent concealment on the part of his employer. The employer failed to advise the employee of certain key facts. It was stated that acts amounting to fraudulent concealment may be as minimal as “a mere failure to inform.”

The motion judge in our client’s case cited Halloran in concluding that our client’s employer had engaged in fraudulent concealment by failing to provide sales figures that our client needed to determine and calculate his potential bonus entitlement. It follows from this decision that if the information necessary to determine your bonus entitlement was not made available to you by your employer, the limitation period may not apply to your unpaid bonus amounts.

Final Thoughts

When it comes to a claim for unpaid bonuses, while you should always be encouraged to bring forward known claims in a timely manner, there are certain exceptions to the usual two (2) year limitation period. Whatever your situation may be, don’t assume it’s too late to sue for the bonus amounts owing to you, consult legal counsel.

GOVERNMENT PROPOSED NEW LEAVES FOR ONTARIO WORKERS

The Ontario government recently proposed a new piece of legislation, titled the Employment Standards Act (Leaves to Help Families).   If passed, the three new leaves would be:

Family Care Leave

Under this leave, an employee would be entitled to a maximum of 8 weeks of unpaid leave in a given year.  The aim of the leave is to allow an employee the opportunity to provide care and support to a family member with a serious medical condition.  To be eligible, the employee would be required to produce a doctor’s note certifying that the applicable family member of the employee has a serious medical condition.

 Critically Ill Child Care Leave

Under this proposed leave, an employee may be entitled for up to 37 weeks of unpaid leave to provide care or support to a child who is critically ill.  This could be in addition to any Family Care Leave which the employee might have taken.  However, to qualify, the worker must have been employed by his or her employer for at least six consecutive months in order to be entitled.

Crime-Related Child Death and Disappearance Leave

Here, an employee may be entitled to up to 52 weeks leave of absence without pay, where the employee’s child has disappeared, as a result of a crime.  Where the child had died as a result of a crime, the employee would be entitled to up to 104 weeks of leave without pay.  One notable qualification in this section is that the employee would not be entitled to the leave if he or she is charged with the crime.  The leave would also not be available where it has been determined that the child was a party to a crime.  Also, like the Critically Ill Child Care Leave, the employee must have been employed with the employer for at least six consecutive months.

The passage of the proposed amendments to the Employment Standards Act would provide workers with increased job security.  Employees would have the assurance that their absence from work, due to family emergencies, could not be used by an employer to justify their termination.  Employers who violate these provisions would be liable for sanctions under the Employment Standards Act, as well as a civil claim for damages based on wrongful termination.

If you have any questions regarding your rights as an employee, or employer, feel free to contact one of the employment lawyers at Brown Litigation.

Posted by D. Jared Brown Lead Counsel

A new standard for punitive damages in wrongful dismissal?

The Toronto Star is reporting on a recent decision of a jury trial in B.C. which awarded a long service (34 years) electrical manager significant punitive damages at trial ($573k).

http://www.moneyville.ca/article/1254936–jury-awards-809-000-in-record-wrongful-dismissal-case

The decision is unique not only because of the size of the award, but also because the employee elected to try the case by jury, rather than judge alone.

The article identifies that the case was uniquely suited to a jury trial on account of the fact that the business in question was the largest single employer in a small town, and it was thought a jury of the employee’s peers would better understand the undercurrents that resulted in the termination (the power imbalance between employer and employee).

While it is hard to imagine that this decision on its own will be representative of a new standard for punitive damages, it is noteworthy for the fact that a jury felt the employer’s actions warranted such severe condemnation.

Brown Litigation regularly assists employers and employees in employment disputes through strategies aimed at mitigating risk, minimizing cost, and ensuring favourable outcomes.

Posted by D. Jared Brown – Lead Counsel

 

Fired? Get a Job!

If you have been dismissed from your job, there is a duty in contract law which states that you have an obligation to mitigate your damages.  This doctrine means that a dismissed employee must take steps to minimize the losses they suffered as a result of losing their job.  Basically, this means that you need to take steps to look for another job.

The leading case on the duty to mitigate is the Supreme Court of Canada decision of Red Deer College v. Michaels.  In this case, the Supreme Court explained the duty to mitigate as follows:

The primary rule in breach of contract cases, that a wronged plaintiff is entitled to be put in as good a position as he would have been in if there had been proper performance by the defendant, is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff.  There reference in the case law to a “duty” to mitigate should be understood in this sense.

The Court held that the burden is on the defendant to provide proof that the plaintiff failed to mitigate her/her damages:

It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by contract.

The Court went on to emphasize that the onus on the employer is heavy, citing a previous decision, because “the burden which lies on the defendant of proving that the plaintiff has failed in his duty of mitigation is by no means a light one, for this is a case where a party already in breach of a contract demands positive action from one who is often innocent of blame.”

Despite the burden being on the defendant to show that efforts were made, plaintiffs have been criticized by the courts for not making enough of an effort. In Chambers v. Axia Netmedia Corp., it was held:

Clearly, the efforts of Mr. Chambers [the plaintiff] were to a large extent confined to reading the local newspaper and forwarding his resume to employers. Although commendable, I am satisfied, by restricting his search to this one vehicle, the effort was too limited. Although there is no evidence as to whether these other efforts would necessarily have produced a positive result, earlier than he was able to find the employment he did, I am satisfied there was, to some extent at least, a failure to take all reasonable steps to mitigate

There are simple steps that a plaintiff can take to demonstrate that they attempted to mitigate their damages in an attempt to avoid an adverse decision like the one in Chambers.  We counsel our clients to keep a running log or mitigation journal outlining all the key events, dates, and information related to their job search post-termination including identifying job search efforts, networking, applications, and other career building steps.  This is typically done in the form of a diary or a calendar.  Second, retain copies of the letters, emails, or any other correspondence you sent in an attempt to secure a position.  Third, diversify your search.  You don’t need to limit to just one means.  You could add yourself to the social networking site LinkedIn, search on websites such as Workopolis, scan the newspapers and attend local networking events in your city.  Further, Human Resources Development Canada (“HRDC”) offers a range of free networking, job search, and outplacement services for qualifying dismissed individuals.  All of these steps will assist you in demonstrating that a genuine effort was made to secure new employment.

Posted by D. Jared Brown – Lead Counsel