| February is Black History Month in Canada, a month to honour and celebrate the contributions of Black Canadians in all facets of our society. It is also a time to reflect on the significant impediments which still stand in the way of achieving a more inclusive and diverse society. We have seen a growing societal awareness of the harmful and unjust impacts of racism, both direct and systemic, in all aspects of society. This evolving social ethos is now clearly and consciously being reflected in decisions involving racism in the workplace and having an immense impact both in the application of anti-discrimination law and the consequences flowing from it.
In this newsletter we will review two recent decisions which reveal how seriously the law is now approaching any form of racism in the workplace and how important it is for employees and employers to be aware of their obligations.
Levi Strauss & Co v. Workers United Canada Council[1]
This decision upheld the termination of a long-term, unionized employee, with a previously clear record of discipline, for making racial slurs against a co-worker during a single episode in the workplace.
In the facts of the case, the grievor made three racial slurs against a Black co-worker during an altercation in the workplace. The arbitrator found that the “three displays of inappropriate racial targeting, … while cumulatively taking less than 30 seconds, occurred over an interval of approximately 10 minutes.”[2] The racial slurs were vicious, including the use of the “N” word or its equivalent, and were racially demeaning. As well, the grievor’s conduct was bullying and intimidating, upsetting other members of the workforce who were predominantly women of colour.
Among many points made in the lengthy decision, the arbitrator noted the employer’s obligations under occupational health and safety legislation, the emphasis the employer had placed upon having a discrimination-free workplace through its policies and training of the employees, and the comprehensive investigation the employer had undertaken in response to the incident.
Throughout the decision the arbitrator stressed the “evolution of thinking” which has occurred in society and the law regarding racism. Previously, racial slurs and insults might have been minimized as ‘shoptalk’ or downplayed because they were not directed at anyone in particular. He categorically rejected any such minimization. He held that:
. . . any suggestion that the usage of racially demeaning language or a racial slur can ever be relegated to mere “shoptalk” in whatever form and in any circumstances, must in my view be repudiated in its entirety.[3]
He explained that if such words could be overheard in the workplace “at a minimum they contribute to a poisoned work environment, which if not appropriately redressed leads to the impression that minority racial groups are somehow less entitled to equality.”[4]
The arbitrator thus concluded that any use of demeaning racial or ethnic slurs is prima facie just cause for termination “because all employees know or are reasonably expected to know that such behaviour is unacceptable in the prevailing climate that rightly calls out for immediate redress of all forms of racism in the workplace.”[5]
Because the grievor denied any wrongdoing and expressed no remorse, the arbitrator concluded that his reinstatement would pose a risk to ensuring a harassment-free workplace and as a result a lesser form of discipline could not be justified. Nor were the mitigating factors of the grievor’s long service, lack of previous record, advanced age, medical condition, and dim prospects for reemployment sufficient to militate the penalty of discharge.
Francis v. BC Ministry of Justice[6]
The BC Human Rights Tribunal rendered two long, but very significant decisions in the case of complainant Levan Francis. The complainant was a Black correctional officer with the Ministry of Justice from 1999 until he left his employment in 2013 as a result of discrimination. The Tribunal concluded that the complainant experienced severe racial discrimination in his workplace which encompassed “virtually the entire spectrum of racial discrimination and harassment in the workplace.”[7] He was subjected to racial slurs, stereotyped as being “lazy” and “slow”, singled out for unjust criticism and heightened scrutiny, and subjected to retaliatory actions for having filed a complaint about it.
The Tribunal found that the “comments and actions of his coworkers and supervisors struck at the core of Francis’ identity and feelings of self-worth and emotional well-being.”[8] Furthermore, the employer’s attempt to “trivialize the impact of racialized comments and slurs on Francis plays into the myth and misconception that as a racialized person, Francis was too sensitive and overreactive.”[9]
Previously a healthy, athletic, family man, the ultimate impact of the discrimination upon the complainant was extreme: he suffered deepening mental illness; he lost his ability to work and stay active and healthy; and he lost his capacity to be a good father and husband. His wife’s testimony, repeated a number of times in the decisions, was that the experience and the ongoing case “destroyed him as a human.”[10]
The Tribunal found the circumstances called for significant condemnation and redress. It ordered damages totalling over $1 million in lost earnings, pension, expenses, interest, and injury to dignity. Significantly, the award for injury to dignity ($220,000 before a contingency reduction) is by far the highest award of this nature from the Tribunal by a factor of nearly 2½ times. This is consistent with the trend of rising human rights damages in Canada and the confirmation from the BC Court of Appeal that there is no upper limit in the Human Rights Act on the Tribunal’s ability to compensate complainants for the actual harm they have suffered as a result of discrimination.[11]
Significance of the Decisions for Employees and Employers
These decisions exemplify the willingness of adjudicators to develop the law in a direction more responsive to the societal goal of diverse and inclusive workplaces which are free from discrimination. With the unprecedented award of damages in Francis and the refusal to minimize the gravity of racial slurs in Levi-Strauss, these decisions may well be a bellwether for future developments in this area. The decisions place serious and unforgiving obligations on both employees and employers, with equally serious and unforgiving consequences to both if those obligations are not met:
- For employees, the obligation is to refrain absolutely from racial slurs or any other kind of racially demeaning conduct in the workplace. Failure to do so can result in termination of even a long-term, senior employees.
- For employers, the obligations are manifold. They centre on prohibiting and preventing racially discriminatory conduct in the workplace. To be effective, that likely requires comprehensive anti-discrimination policies, instruction and training of the employees, and committed and thorough investigation of any complaints. Failure in these obligations can lead to extensive, costly, and embarrassing legal proceedings as well as significant damage awards.
- The Tribunal has prominently noted the myths and misconceptions involved in sexual harassment and now in the Francis case regarding the response to individuals who have experienced discrimination. In both areas the Tribunal has expressed concern regarding how complainants and their responses are perceived. This approach must be noted when responding to complaints of discrimination or harassment.
The lawyers at Overholt Law LLP have the expertise to assist you in reviewing your workplace policies, implementing discrimination prevention strategies and conducting investigations into complaints. Please contact us with any of your concerns.
[1] 2020 CanLII 44271 (ON LA)
[2] para. 219
[3] Ibid., para. 206
[4] Ibid., para. 188
[5] Ibid., para. 210
[6] Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 (“Francis (No. 3)”); Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16 (“Francis (No. 5)”)
<[7] Francis (No. 3) para. 159
[8] Francis (No. 5) para. 216
[9]Francis (No. 3), para. 289; Francis (No. 5), para. 161
[10] Francis (No. 5), paras. 44, 104, 180, 202, and 216
[11] University of British Columbia v. Kelly, 2016 BCCA 271
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