Passed over, bullied, mistaken for janitorial staff. Black women sue Ontario public service alleging systemic racism

A case to watch:

Two Black women employed by the Ontario public service (OPS) are suing their unions and the provincial government, alleging they suffered years of systemic racism and discrimination while their complaints were ignored, disbelieved or met with reprisals — and ultimately led to them being suspended or forced from the workplace.

In a statement of claim filed Feb. 25 with the Ontario Superior Court of Justice, Jean-Marie Dixon and Hentrose Nelson accuse the provincial government of allowing an organizational culture that “fosters racism, dysfunction, discrimination, harassment, racial bullying, and abuse of authority/power.”

“Anti-Black racism, and racism in general, along with white privilege and white supremacy, are pervasive and entrenched within the OPS,” they allege, referring to the government workforce of more than 65,000 public servants employed by ministries, agencies and Crown corporations. (According to a glossary in their lawsuit, they define white supremacy as a “racist belief that white people are superior,” which is “ever-present in our institutional and cultural assumptions” and confers structural advantages to white people.)

They further allege that despite ongoing efforts to seek help from senior management, “Black and racialized employees, particularly Black women, continue to be subjected to individual, systemic, and institutional racial discrimination and racial harassment.”

Their unions, meanwhile, have failed to adequately represent them because they are influenced by the same “culture of systemic and institutional anti-Black racism,” according to their statement of claim.

Dixon and Nelson’s legal action comes one year after they organized a meetingbetween several OPS employees and government officials that triggered a temporary halt on the suspension of racialized employees — a moratorium that was quietly lifted in July.

Their lawsuit also intends to challenge the way these kinds of allegations are handled in Canada. Many of their claims relate to issues covered by their collective bargaining agreements, but the “law is designed to keep these sorts of disputes … out of the courts and sent instead to expert labour and human rights tribunals,” says David Doorey, a labour and employment law professor with York University who is not involved with the lawsuit.

But Dixon and Nelson allege their many attempts to seek justice — including through their unions, internal workplace processes and the human rights tribunal — have been “ineffective” so their “only viable recourse” is through the courts.

“It’s been very, very traumatic,” Dixon said in an interview. “When you’ve worked so hard, as I’ve worked — I put myself through school, I got here on my own and on my own merit. And someone can take that from you.”

“No dollar amount could fix the irreparable damage,” Nelson said. “I think about how my life has been altered; I can’t get it back.”

The lawsuit’s allegations have not been tested in court and the respondents — the provincial government, Association of Law Officers of the Crown (ALOC), and Association of Management, Administrative and Professional Crown Employees (AMAPCEO) — have yet to file statements of defence.

When reached by the Star, government spokesperson Craig Sumi with the cabinet office declined to comment on a matter subject to legal action but said “ending system (sic) racism” is a top priority.

“While the organization has made a lot of progress, we continue to hear that OPS programs and policies are not addressing the concerns of racialized employees, particularly Indigenous and Black employees,” Sumi said in an email. “The organization is committed to working with our employee networks to make significant progress toward building a more diverse, inclusive workplace where everyone feels comfortable and welcome and is able to fully contribute.”

Both unions named in the lawsuit said they take discrimination complaints “very seriously” and will continue to represent Dixon and Nelson, who remain members. But ALOC “strongly denies” allegations that it discriminated against Dixon and “will defend itself before the courts,” president Megan Peck wrote in an email.

“In representing Ms. Dixon, ALOC has always acted, and will continue to act in accordance with its legal responsibilities, which include the duty to represent Ms. Dixon without discrimination,” Peck said.

A spokesperson for AMAPCEO, Anthony Schein, declined to comment on Nelson’s case but said as a policy matter, the union’s view is that the OPS “continues to struggle with systemic discrimination.”

“For decades, AMAPCEO has been advocating for the OPS employer to end systemic discrimination within the OPS and promote equity in our members’ workplaces,” he wrote. “To this end, AMAPCEO ably responds to individual members’ situations through our dispute resolution process. We also push the employer to address systemic issues.”

In their 113-page statement of claim, Dixon and Nelson allege a pattern of anti-Black racism and harassment that followed them across departments and persisted throughout their public service careers.

Dixon and Nelson, both in their 40s, joined the OPS in 2002 and 2004, respectively. Dixon is a single mom and lawyer with the Ministry of the Attorney General whose office deals with seized property stemming from illegal activity. Nelson, a married mother of three, most recently worked for the Ministry of Citizenship and Immigration, where at one point she was “the only Black employee in an administrative role,” she writes in her claim.

Both women allege the racism they experienced took many forms, everything from bullying and micro-aggressions to racist comments, including from a white female manager who said she “feared” Black women and a colleague who complained about the “face” of the office changing after racialized women were newly hired.

Despite being diligent employees, they were denied professional opportunities, over-scrutinized and subjected to “anti-Black stereotypes and tropes,” according to their claim. Nelson, whose most senior role involved financial reporting and budget management, alleges she was once mistaken for janitorial staff and routinely given “office housework” that wasn’t assigned to non-Black staff — for example, cleaning a dirty basement storage room, or ordering taxi chits and monitoring print supplies, “while a white woman, junior to Hentrose, assumed more meaningful responsibilities.”

Dixon alleges she was also treated with unnecessary suspicion (for example, she was not trusted to maintain custody of valuable credit cards that had been seized for a case she was working on) and “unwarrantedly” labelled as “loud,” “rude” and “aggressive.” At one point, according to her claim, another Black lawyer told Dixon her office colleagues were “organizing or orchestrating acts of discrimination and harassment against her” and told him to “participate in marginalizing Jean-Marie or he would receive the same negative treatment.”

Both women sought help from managers, filed complaints with an internal workplace discrimination program, and grieved through their unions. But according to the claim, none of these measures were effective and speaking up only made matters worse.

Nelson alleges that “as a result of anti-Black racism,” she was demoted to a junior position in 2015 and ultimately forced from the workplace by “mobbing, harassment, discrimination, hostility and ongoing mistreatment.” According to her claim, she also became critically ill in 2011 and delivered her baby prematurely at six months.

Dixon alleges her complaints of anti-Black racism were interpreted as “reverse racism” against Caucasian people and caused her displacement across four ministries. According to her claim, managers eventually “engaged in reprisal” by initiating a workplace complaint against her on behalf of staff who “made false allegations” about her conduct — a complaint that led to her suspension in 2016.

Neither have since returned to work. Nelson is currently on an unpaid leave of absence and Dixon, despite being reinstated in October 2017, says she has been unable to return to work due to a workplace-induced disability. She is still being paid, however.

Both women allege they are now suffering from post-traumatic stress disorder, loss of income and other harms, and are seeking $26 million in damages, along with several public interest remedies.

When reached by email, their lawyer Ranjan Agarwal with the firm Bennett Jones, declined to comment on active litigation.

In recent years, OPS leadership has acknowledged the equity challenges within its own ranks, where racialized workers comprise 23 per cent of the workforce but only 17 per cent of directors, 12 per cent of assistant or associate deputy ministers, and 9 per cent of deputy ministers, according to a 2017 “diversity and inclusion” report. “To create an equitable OPS, we need to recognize that there are systemic racism barriers that prevent people from reaching their full potential,” the OPS stated in its anti-racism policy, released last year under then-secretary of cabinet Steve Orsini, who retired in January.

The anti-racism policy found that 23 per cent of Indigenous employees and 25 per cent of Black employees reported experiencing discrimination, compared to just 13 per cent of the general OPS population. Employee survey results have pointed to systemic issues as well and in 2017, Black employees reported discrimination at nearly twice the rate of OPS employees generally. Last year, according to more than 3,600 survey respondents, race was the leading cause of discrimination next to age.

A Star analysis of data obtained through freedom of information legislation also shows that provincial ministries were named in at least 136 complaints filed with the Human Rights Tribunal of Ontario between mid-2008 and 2017, where someone alleged employment discrimination based on race, ancestry, colour, ethnic origin or place of origin. These accounted for roughly a quarter of all employment-related human rights complaints filed against the Ontario government during this time period.

Black employees have been particularly vocal in raising concerns through various forums, including town hall meetings organized by the Black Ontario Public Service Employees Network. On Jan. 18, 2018, more than 20 Black employees, including Dixon and Nelson, also confronted government officials face-to-face, including Liberal MPP Michael Coteau, who was then leading Ontario’s anti-racism directorate.

During the emotional meeting, the group of mostly Black women described experiencing racism on the job and being systematically passed over for opportunities. They said their concerns were ignored or mishandled by senior managers and, in many cases, led to their own suspensions or firings.

“These people that are putting us through this … none of them are ever demoted. We are fired,” one woman said in a video of the meeting posted online. “There’s a lot of Black people in the same position as I am, where they have ambition and they want to be promoted, and they’re not promoted at the same levels as our white counterparts.”

At the meeting, the group demanded a moratorium on the suspension of racialized employees — which was publicly announced the following day by Orsini. Behind the scenes, his office also emailed government ministries to request a list of cases where “someone we presume to be a racialized employee is suspended or off work,” according to internal documents obtained through a freedom of information request. About a week later, 52 cases had been identified.

Sumi said the moratorium allowed the government’s Public Service Commission to “assess the scope of the issue” while providing a central mechanism to assess new cases involving possible suspensions. It was formally lifted on July 27, 2018 after the government completed its review, he said.

In their statement of claim, Dixon and Nelson point to numerous reports, surveys and investigations that suggest the government’s efforts to address systemic racism within the OPS have “proven futile.”

Among them is a confidential 2017 report leaked to the Star, which described a “toxic” work culture within the Ministry of the Attorney General’s civil law division, where Dixon’s office is based. According to Leslie Macleod, a lawyer and former bureaucrat hired by the government to conduct the report, racialized staff within the division reported being marginalized, over-scrutinized, and “perceived and treated as less able than their white counterparts.”

Some racialized staff were told they “got in” because of their race and people felt “unsafe and targeted by colleagues and insufficiently supported by management,” Macleod found. Racialized women felt particularly disadvantaged, she added.

“It was said that when racialized women do get good files, there is an undercurrent of ‘why is she getting good files?’ — something that is not questioned when a senior white male is assigned a high profile case,” Macleod wrote.

In November, the government also publicly released an external review of the government’s workplace discrimination and harassment prevention (WDHP) policy and program “through an anti-racism lens.”

The program is meant to resolve cases of workplace discrimination within the OPS but in their statement of claim, Dixon and Nelson — both of whom launched WDHP complaints — criticized such internal processes as “ineffective in addressing racism.” Lawyer Arlene Huggins, who was hired to conduct the external review, said the government triggered the probe because of its “strong perception” the WDHP program was actually “exacerbating or perpetuating the challenges” of employees struggling with racism.

For her final report, Huggins examined 72 cases and related files; she also chose 13 cases for closer examination, which primarily involved Black women with “significant years of service.” She said employees reported several issues, including WDHP advisers who did not seem to understand the program, lacked training in unconscious bias and anti-Black racism, or pressured employees into excluding important details from their complaints. Some people said they were “yelled at, interrogated and treated like a criminal,” according to Huggins’ report.

Employees also described negative experiences that were “particular to them being Black women,” Huggins wrote; for example, labelled “argumentative, difficult and unco-operative” when they articulated career goals, accused of playing the race card when they complained about unfair treatment, and perceived as ineffective managers.

The WDHP policy does not apply to systemic barriers, yet those barriers played a “material role” in these WDHP complaints, Huggins concluded. Participants she interviewed complained of an “inherent and unconscious bias and anti-Black (or anti-racialized) animus.”

“One complainant with almost 20 years experience reported 58 unsuccessful (job) competitions since 2008,” she said.

In their lawsuit, Dixon and Nelson write that the provincial government is one of Canada’s largest employers, “entrusted with extraordinary power and influence that affect and impact the lives of all Ontarians,” so its actions are particularly consequential.

“Racism is a public health emergency,” they write. “But based on the actual and lived experiences of Black people, there is much skepticism about the commitment or ability of current institutions to address systemic and structural anti-Black racism in Canada.”

Source: Passed over, bullied, mistaken for janitorial staff. Black women sue Ontario public service alleging systemic racism