Black Workers, Workplace Suspicion, and the HRTO’s Evidentiary Catch-22

A recent Human Rights Tribunal of Ontario (HRTO) decision dismissing an application for having no reasonable prospect of success highlights a familiar and troubling catch-22 for Black applicants alleging workplace discrimination.

The case involved a Black man of Caribbean descent who alleged that Metrolinx discriminated against him by requiring drug and alcohol testing after a motor vehicle accident. No one was injured, and the test came back negative. The applicant said he knew of non-Black drivers who were not tested after accidents, while he did not know of any Black drivers who had been exempted. He did not yet have documentary evidence to prove this pattern, but indicated he would seek race-disaggregated testing records if the matter were allowed to proceed.

The Tribunal rejected that position, characterizing the proposed request as a “fishing expedition.” In the Tribunal’s view, the applicant needed stronger evidence at the outset.

That conclusion raises serious concerns. It is difficult to reconcile with the HRTO’s own longstanding recognition that racial discrimination is rarely overt, rarely admitted, and often must be established through circumstantial evidence and reasonable inference. In many workplace cases, the very records that might confirm or undermine discrimination are controlled by the employer. Requiring applicants to produce stronger proof before they have access to those records can create a structural barrier that is especially harmful in discrimination cases.

The Catch-22 in Proving Workplace Discrimination

One of the enduring difficulties in human rights litigation is that discrimination often happens in the shadows of discretionary decision-making.

Policies may look neutral on paper, but comparable incidents may be treated differently without explanation. Records that could reveal a pattern are often unavailable to workers unless a case survives long enough to reach production. In that context, insisting on stronger evidence too early can function less like a neutral screening mechanism and more like a barrier to accountability.

That problem is particularly acute for Black workers. Workplace racism is not limited to explicit slurs or clearly documented exclusion. It often operates through heightened scrutiny, differential suspicion, selective enforcement, and assumptions about credibility, professionalism, safety, or risk. A worker may see the pattern clearly in lived experience long before they can prove it in a way the Tribunal will accept.

Why Perception Still Matters, Even Where Discrimination Is Disputed

Even if one assumes, for the sake of argument, that there was no discrimination in this particular instance, that does not end the inquiry.

The applicant believed he was being singled out because he was Black. That belief did not emerge in a vacuum, and it should not be dismissed as “all in his head.” At minimum, this should prompt reflection on what the organization could be doing differently to make workers feel safe and respected.

Trauma- and Violence-Informed Management Requires Structural Analysis

This is where trauma- and violence-informed (TVI) management becomes essential.

A TVI approach does not treat workplace conflict as detached from social context. It recognizes that people encounter organizations carrying lived and inherited experiences shaped by power, violence, exclusion, and survival. In the employment context, that means understanding that workers do not arrive as blank slates. They arrive with histories, communities, identities, and social knowledge about how institutions can operate.

For Black workers in Canada, those realities include longstanding and ongoing experiences of anti-Black racism across education, child welfare, housing, employment, policing, criminalization, and other public and private systems. Black communities have endured surveillance, exclusion, punishment, family separation, and disproportionate scrutiny in ways that are well documented and deeply felt. At the same time, it's crucial not to flatten Black experience into a single story. Black communities are not monolithic. Black people in Canada are diverse in history, culture, migration pathway, language, gender identity, sexual orientation, class, disability, religion, family structure, and countless other dimensions of identity and experience. The impacts of anti-Black racism are therefore not uniform. They are often compounded and reshaped by other protected grounds and social locations. Intersectional and compound forms of racism can be profound, and profoundly different, in their effects.

The point is to recognize that institutions operate against a backdrop of collective and differentiated harm, and that workers interpret workplace events through that reality. From that perspective, the applicant’s assertion that he was singled out because the respondents assumed “all Black people take drugs” cannot simply be brushed aside as an overreaction. It is an allegation grounded in a social history in which Black people have often been cast as suspicious, dangerous, untruthful, and pathological. A TVI employer would understand why such a concern might arise, especially where the worker had observed what he believed to be inconsistent treatment.

Cultural Safety Begins with Validation, Not Defensiveness

Another core TVI principle is cultural safety.

Cultural safety is not achieved by proclaiming inclusivity or by adopting generic diversity language. It is created when people can raise concerns about power, bias, and harm without being belittled, punished, or made to feel that naming racism is itself the problem.

That matters here. Rather than treating the worker’s concerns as a waste of managerial time, a culturally safer workplace would have created conditions in which those concerns could be raised, explored, and answered before the situation escalated to the HRTO. Even if an employer ultimately concluded that the policy had been applied appropriately, there is a world of difference between a process that is defensive and dismissive, and one that is transparent, respectful, and willing to account for how the situation appeared to the worker.

Validation is about recognizing a worker’s dignity and the legitimacy of their concern. Workers from marginalized groups are often required to present concerns in calm, perfectly documented, emotionally neutral ways in order to be heard at all. Meanwhile, institutional defensiveness is normalized. That is not equity.

Discretion in Policy Is Often Where Inequality Enters

This case also points to a practical organizational lesson: policies that leave significant room for discretion can create conditions for inconsistent and potentially discriminatory application.

Discretion is not always avoidable. But when a policy gives managers broad authority to decide when a measure like drug and alcohol testing will be imposed, employers should be alert to the risk that implicit bias, assumptions, or workplace culture may shape outcomes. Even where there is no conscious racism, discretionary systems can still produce racialized patterns.

That is why employers should routinely ask:

- Are the criteria for invoking testing clear and consistently applied?

- Are managers documenting why a decision was made in one case but not another?

- Are patterns being monitored across race and other grounds?

- Do workers understand the policy and trust that it is being applied fairly?

- Can workers raise concerns without retaliation or ridicule?

These are not only legal compliance questions. They are questions about whether an organization is serious about substantive fairness.

Supporting Managers Is Part of the Work

One often overlooked aspect of TVI management is that it can be demanding work for managers too.

Managers are frequently expected to respond to conflict, trauma, complaints, and mistrust without adequate training, reflection space, or institutional support. Frustration is not unusual. But that is precisely why organizations cannot leave this work to individual temperament.

If employers want managers to respond well when workers raise concerns about racism, then employers need to build supportive structures around them. That can include debrief processes, tap-in and tap-out protocols, coaching, reflective supervision, and regular walkthroughs of workplace practices to identify trauma triggers and inequitable friction points. It can also include concrete anti-racism training that addresses discretion, credibility assessments, implicit bias, and the dynamics of racialized defensiveness.

The goal is to make the organization less reactive, less opaque, and less dependent on individual goodwill. Good intentions are not enough when the system itself creates conditions for harm.

What Employers Should Take From This

Employers reading this kind of case should resist the temptation to focus only on whether the application was dismissed. A dismissal is not the same thing as a healthy workplace.

The more useful question is what this dispute reveals about organizational trust. Why did this worker believe race was at play? What in the policy, the workplace culture, or the managerial response made that belief credible to him? Could the issue have been addressed earlier through transparency, respectful dialogue, clearer criteria, or better oversight of discretionary decisions?

A truly TVI workplace does not wait for the HRTO to validate a worker’s experience before taking it seriously. It recognizes that people who have lived with structural oppression often perceive risk where institutions perceive routine administration. Instead of dismissing that gap, employers should learn from it.

That is especially important in relation to Black workers, whose experiences of workplace scrutiny and institutional suspicion cannot be separated from broader histories of anti-Black racism. But it is equally important to avoid flattening those experiences into a single narrative. Black workers live at multiple intersections, and the forms of racialized harm they encounter may be shaped by gender, disability, migration status, religion, sexuality, class, and other grounds in distinct ways. An empowering analysis must therefore be both structurally grounded and attentive to difference.

If Your Organization Needs Support

TVI training can help employers, managers, and leadership teams better understand how structural inequality, bias, discretion, and cultural safety shape workplace experiences and responses to conflict. Inclusive workplace design goes further by helping organizations identify risks early and build systems that are more equitable, responsive, and resilient.

My work with employers includes TVI training, inclusive workplace design, workplace audits aimed at identifying concerns before an incident escalates, and the development of harassment and discrimination policies and programs, along with training on how those policies and programs are implemented in practice.

If your organization needs support in any of these areas, please reach out to set up a call.