Microaggressions: Creating Evidentiary Issues and Limiting Organizational Responses Through Inaction

Date: August 18, 2026

Overview

I am often retained to investigate alleged discriminatory microaggressions in the workplace and find it worthwhile to note: 1) the unique challenges organizations face when responding to complaints of this nature; and 2) how the initial response can impact the investigative process, the outcome, and the workplace culture.

This Insight attempts to underscore the importance of documenting and addressing concerns early in the hope that training, coaching, and restoration, rather than discipline, remain appropriate responses, or to preserve a record establishing that may ultimately support a finding of discriminatory harassment.

Understanding Workplace Microaggressions

“Microaggressions” are “everyday derogations, slights, and invalidations” that
subtly and often unconsciously or unintentionally express a prejudiced attitude toward a member of a marginalized group”.[1] This can look like undermining an employee's authority; disproportionately scrutinizing their performance; repeatedly questioning their qualifications or merits for their position; excluding them from projects or workplace interactions without a legitimate reason; refusing to collaborate in good faith; or making subtle comments or assumptions that reflect stereotypes about a person's race, sex, ethnicity, religion, disability, sexual orientation, gender, or other protected characteristics.

The Impact of Delayed Reporting, Documentation, and Investigation

In my view, the unique challenge is not necessarily in the investigator’s analysis. As with any allegations of discrimination, the investigator must be satisfied that the complainant is a member of a group protected by human rights legislation, that they experienced adverse treatment, and that their protected characteristic was a factor in that treatment (which is often established through circumstantial evidence). The challenge is often one faced by the organization, and arises when historical allegations of seemingly small slights have gone undocumented, and reliable evidence lost to the passage of time.

It is not uncommon that complainants or managers express wanting to give a respondent the benefit of the doubt and assume there may have been another explanation for the differential treatment, such as personality conflicts, operational considerations, or simple misunderstandings. This may arise where the individual engaging in the conduct does not appear to intend to cause offence, or where formal power imbalances (like a reporting relationship) or informal power imbalances (such as workplace cliques or favouritism) make it difficult to challenge the conduct in the moment, particularly given the assumed minimal impact.

It is also important to note that not every microaggression, even if discriminatory, will amount to harassment; individual incidents may not be deemed serious or persistent enough to meet the test. As such, by the time concerns are formally raised, it can be difficult to identify specific incidents with sufficient detail to permit a full and meaningful response from the respondent. This means that, even where a pattern of discriminatory conduct occurred and had a meaningful impact on an employee’s psychological safety and ability to fully participate in the workplace, the organization's ability to investigate, make findings, and implement appropriate corrective measures reflective of the extent of the conduct may be significantly limited.

An Example from the Jurisprudence: CUPE Local 79 v. Toronto (City)

These challenges played out in Canadian Union of Public Employees, Local 79 v Toronto (City), 2021 CanLII 22022 (ON LA), where a manager commented that Africa had the highest incidence of herpes, and the arbitrator found the comment to be a racial microaggression. However, the grievor was unable to provide sufficient particulars regarding similar comments allegedly made in the past, leaving the arbitrator with only a single proven incident. As a result, although the comment was found to be inappropriate and discriminatory in nature, the evidence did not support a finding of harassment under the Ontario Human Rights Code had because there was no established course of vexatious conduct and the incident was not sufficiently serious, on its own, to meet the applicable legal threshold.

Takeaways

Even isolated incidents with minimal impact should be investigated and documented. This is particularly important where there is differential treatment towards an individual from a historically marginalized group and there does not appear to be a persuasive operational reason for that differential treatment. While the form of the investigation will depend on the circumstances, the respondent should have the opportunity to provide an explanation for the conduct and, in the absence of a persuasive rationale, respond to the suggestion that their comment may be based in stereotypes or bias.

If you have questions about workplace microaggressions, discrimination complaints, or investigation processes, or if you would like to discuss a workplace concern, policy, or investigation, please contact Becky at becky@langillelittle.ca.

[1] See for example: https://www.canada.ca/en/department-national-defence/maple-leaf/defence/2024/01/workplace-microaggressions.html; https://www.merriam-webster.com/dictionary/microaggression; and https://www.apa.org/pubs/highlights/spotlight/issue-133.