June 27, 2013

Claims of systemic discrimination present special challenges. Establishing this type of discrimination requires proof of policies or practices which disadvantage a certain identified group in the workplace, and is often more difficult than showing individual discrimination. As well, in cases of systemic discrimination, traditional remedies such as reinstatement and damages are frequently insufficient. Instead, this discrimination requires broad, workplace-wide responses which will get to the root of the unfair treatment and prevent similar problems in the future. Hear a panel of Lancaster’s legal experts as they discuss how systemic discrimination cases are best argued and resolved. Issues to be discussed include:

    • Systemic discrimination: How is systemic discrimination defined? What test is applied when determining whether a prima facie case of systemic discrimination has been made out? When will systemic discrimination result in a poisoned work environment? In what contexts do claims of systemic discrimination often arise? Hiring? Mandatory retirement? Pay disparities? Discipline and attendance management? When will accommodation policies themselves be regarded as discriminatory?
    • Making your case: What evidence is required to advance (or contest) a claim of systemic discrimination? Is direct evidence of discrimination necessary? Do you need expert testimony? Is statistical evidence necessary or advisable to prove that discriminatory treatment is widespread?
    • Monetary remedies: What type of monetary remedies can be sought by complainants in systemic discrimination cases? Damages for lost wages? Damages for injury to dignity, feelings and self respect resulting from discrimination? Punitive damages? What evidence is necessary to establish the quantum of damages?
    • Non-monetary remedies: What types of orders can an arbitrator or tribunal make to correct a discriminatory work environment or prevent future discrimination? Should an employer be required to post tribunal or arbitration decisions in the workplace? Establish or amend human rights policies? Implement educational or training programs? Change hiring and/or retention practices? Should external consultants be brought into a workplace to implement systemic remedies? How should these orders be enforced? Will orders typically have a specified date by which they must be implemented? What steps can be taken to enforce remedial orders of the tribunal if a party refuses to comply with the orders?