Termination Upheld for Long-Term Employee Engaged in Racially-Based Harassment

In the current social and workplace climate, governments and employers are making practical efforts to develop policies to counteract systemic racial discrimination.

Human Rights Codes in all Canadian provinces and territories have prohibited discrimination on the basis of race, creed, colour, religion, nationality or place of origin for many years. However, obtaining a meaningful remedy can be a lengthy process, and often a complaint happens when an employer either cannot or will not directly deal with the issue in the workplace. More recently occupational health and safety legislation mandates policy, training and investigation to attempt to create and promote respectful workplace environments.

The Arbitrator’s Decision in Levi Strauss & Co. and Workers United Canada Council, [2020] O.L.A.A. No. 165; 2020 CarswellOnt 9279 (Levi Strauss)

An Ontario arbitration decision in July of 2020 in Levi Strauss gives employers in unionized workplaces a powerful tool to address racism in the workplace. The arbitrator upheld the termination of a 23-year employee for using racial slurs during a workplace altercation. The employee had a clean disciplinary record and a medical condition which hampered his ability to seek re-employment. After referencing occupational health and safety legislation, the arbitrator said:

… it is also appropriate to take administrative notice of the growing but regrettably all-too-slow acknowledgement of the continuing existence of racism of various forms or degrees in the workplace, including the recognition of “microaggression” defined in the Merriam-Webster on-line dictionary as “a comment or action that subtly and often unconsciously or unintentionally expresses a prejudiced attitude toward a member of a marginalized group such as a racial minority”, which in reference to workplace conduct is an expression of systemic racism…

… in the prevailing environment, given the progress towards the societal goal of eliminating all forms of harassment in the workplace, consistent (with) but not limited by the recent amendments of the OHSA, it is in my opinion now appropriate to regard any use of demeaning racial or ethnic slurs by one employee to another as very serious misconduct falling within the category of workplace offences that prima facie justifies terminating the employment relationship…

This decision places racial slurs in the same light for disciplinary purposes as offences such as theft, sexual assault, assault on a supervisor, sabotage and serious conflicts of interest. In practical application, termination is the presumed appropriate disciplinary response for employees who engage in racially-based harassment, absent compelling mitigating circumstances. Mitigating factors that might be relevant are also quite narrow, and focus on the employee taking responsibility for and ownership of their conduct, delivering a timely and sincere apology, and co-operating in the investigation.

Key Takeaways for Employers Addressing Racism in the Workplace

As with all discipline, a prompt and thorough investigation is critical, since most employees will deny at least the most egregious of the alleged conduct, and often, there are no independent witnesses. It is not sufficient for employers to take no further action on the basis of a “he said she said” scenario. If possible, it is necessary for employers to reach a conclusion on the balance of probabilities as to whose account is true, which can often include analysis of collateral information as to which version is more likely to have occurred in the circumstances that existed.

As with most modern workplaces, Levi Strauss & Co. had a robust anti-harassment policy along with training which the terminated employee had taken. The arbitrator also commented that “… 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.”

While Levi Strauss & Co. is a unionized workplace, the same general principles apply in non-unionized workplaces and thus this decision is of broader application and interest. The decision has been favourably commented on in several subsequent arbitration awards and seems likely to be echoed in wrongful dismissal litigation.

Employers considering how the Levi Strauss decision affects their workplace should contact a member of our labour and employment team.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.