While racial discrimination is sometimes displayed overtly, it is recognized that in many instances racial discrimination takes on more subtle and covert forms. Tribunals have frequently noted: “Discrimination is not a practice which one would expect to see displayed overtly”[77] and that it is “often subversive and subtle”.[78] It has long been established in Canadian law that intent or motive to discriminate is not a necessary element for finding that a discriminatory act took place. It is sufficient if there is a discriminatory effect to the conduct.[79] Racial discrimination need only be one of several reasons for the decision or treatment received.[80]

Subtle forms of discrimination can often only be detected upon examining all of the circumstances.[81] Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture and with an appropriate understanding of how racial discrimination takes place, may lead to an inference that racial discrimination was a factor in the treatment an individual received.

Cases alleging subtle discrimination will therefore require an investigation and analysis that examines the total context of the behaviour, comment or conduct alleged, including the presence or absence of comparative evidence contrasting how others were treated in a comparable situation or evidence that a pattern of behaviour exists.

There are many examples of how subtle forms of racial discrimination may occur. It can be particularly difficult to determine whether racial discrimination was a factor in hiring. Where a racialized person is qualified and someone else, no better qualified, is selected, the organization will need to provide a non-discriminatory explanation for failing to hire the racialized person.[82] Discrimination in the hiring process may be established even if the complainant would not have been the successful candidate in the absence of discrimination.[83]

On-the-job, the following types of treatment may be indicative of racial discrimination:

Exclusion from formal or informal networks;
Denial of mentoring or developmental opportunities such as secondments and training which was made available to others;
Differential management practices such as excessive monitoring and documentation or deviation from written policies or standard practices when dealing with a racialized person;
Disproportionate blame for an incident;[84]
Assignment to less desirable positions or job duties;[85]
Treating normal differences of opinion as confrontational or insubordinate when involved with racialized persons;
Characterizing normal communication from racialized persons as rude or aggressive;[86]
Penalizing a racialized person for failing to get along with someone else (e.g. a co-worker or manager), when one of the reasons for the tension is racially discriminatory attitudes or behaviour of the co-worker or manager.[87]
In some instances, a non-discriminatory explanation may be available for such treatment. However, subjective explanations such as “bad attitude” or undocumented “poor performance” will be received with caution. It is therefore in an organization’s best interest to engage in good human resources practices, such as documented progressive performance management of all employees. It has also been established that an individual’s behaviour may itself be a reaction to the experience of discrimination or the existence of a poisoned environment.[88]

In housing accommodation, subtle screening methods may be used to deny racialized applicants equal access to housing:

Racialized persons may be advised that an apartment has already been rented only to have a White friend inquire about the availability of the accommodation and be told that it is still available.
Tenants may not be granted equal access to housing related services because of race and related grounds. This may be in the form of sub-standard living conditions or failing to carry out repairs.[89]
Discrimination may occur as a result of issues being made about the cultural practices of tenants.[90]
Example: A Black man responded to an ad for an apartment and was invited to view it. After the viewing he was told that another person was coming to view the suite and that he would be advised if it would be available. On phoning the landlord he was told that the suite had been rented. However, when his girlfriend’s sister phoned back, she was told the suite was still available. The Tribunal rejected the landlord’s evidence that the man’s demeanour made her uncomfortable and the evidence of another tenant, a woman of Chinese origin, that the landlord could not have practiced racial discrimination vis-à-vis the Black man as she had rented a suite to her.[91]

In the context of education services, subtle forms of discrimination can manifest in a number of ways including[92]:

how educators treat racialized students;
whether racialized students are encouraged to pursue technical versus academic streams;
low teacher expectation of racialized students;
differential disciplinary action directed toward racialized students;
deviating from written policies or standard practices when it comes to dealing with racialized students;
failing to deal with racial incidents or bullying between children or downplaying the seriousness of such conduct; and
treating a racialized student’s response to racial incidents or bullying as a disciplinary problem without dealing with the underlying incident or considering the underlying incident as a mitigating factor.
Issues can also arise in other service areas.

Example: An Aboriginal man reserved a room at an inn and was given a dirty, substandard room. There was statistical evidence drawn from the hotel’s records that certain rooms were more often assigned to Aboriginal clients and that better rooms were more often assigned to non-native clients. In addition, a local police officer who phoned the hotel on behalf of people needing accommodation was asked whether the people were native “because all the native rooms were occupied.”[93]

It is not necessary for language or comments related to race to be present in the interactions between the parties to demonstrate that racial discrimination has occurred. However, where such comments are made, they can be further evidence that race has been a factor in an individual’s treatment. Similarly, negative comments made about an individual advocating for human rights or equitable practices will tend to support an inference that race is a factor in an individual’s or organization’s interaction with that individual.[94]

Example: A Black Vice Principal repeatedly tried to secure a promotion to the position of Principal. In looking at the totality of the evidence, the Tribunal found that irrelevant references to the race of the complainant and a Black teacher by management staff during interviews and/or discussions about transfer opportunities as well as admonishments to Black teachers who advocated for equitable practices “not to expect things to change overnight” supported an inference that transfer and promotion decisions were influenced by considerations of race.[95]

Where racial discrimination prohibited by the Code is alleged, “everyday racism” can form part of the context in assessing whether subtle racial discrimination is at play. Such cases will normally require an element of recurrence and repetitiveness[96] as well as an examination of how others in comparable situations were treated.[97]

Example: A manager frequently rolls his eyes or interrupts when a racialized employee speaks during staff meetings, even though nothing untoward is being said. The manager is not observed to do this with other employees. When the relationship between the employee and manager becomes excessively tense, the racialized person’s employment is terminated. The explanation provided is his failure to get along with his manager.

Similar fact evidence will be used to support an allegation of racial discrimination where appropriate.[98] In addition, recognizing that most racialized persons are more likely to see discrimination that remains invisible to others, it is the Commission’s position that a perception of discrimination by others may have some relevance in a complaint.[99]

Evidence that an individual who shares the racialized characteristics of the complainant has not experienced discrimination may or may not have relevance, depending on the nature of the allegations of discrimination. General allegations of failing to promote “minorities” may call for an examination of whether an organization has promoted other “minorities”. However, with regard to a specific allegation regarding the treatment of African Canadians, evidence regarding treatment of Chinese Canadians may be of little or no use. This is due to the fact that racial discrimination can manifest very differently based on each person’s racialized characteristics. This is particularly so among racialized groups but it can also be the case within a group. For example, a person who speaks with a South Asian accent and wears South Asian cultural clothing may have a very different experience than someone who is seen to be more “assimilated”, a light skinned person may have a different experience than someone with darker skin and a person may be singled out for harsh treatment while others are not because the person refuses to fit a stereotype, or asserts his or her rights.

Since anyone can engage or participate in discrimination, asserting that racial discrimination could not have occurred because a person alleged to be involved is himself or herself a racialized person is also not necessarily a defence.