October 16, 2020
Racial slurs have no place in the workplace, and may be grounds to terminate for cause.
A recent arbitration award, Levi Strauss & Co. v Workers United Canada Council, 2020 CanLII 44271 begins by noting that at one time, verbal clashes between coworkers, even ones involving racial insults were not considered as serious as altercations with supervisors, and often were considered merely “shoptalk”. At most, an employee with a good record might receive minor discipline.
In the 21st century, those attitudes are no longer acceptable. The employer in the Levi Strauss case dismissed a long service employee with a clean disciplinary record for cause after that worker, identified as white, had used racial epithets in a confrontation with a fellow employee identified as black, and then was heard to repeat offensive language to others.
The union grieved, denying that the words were used, and in any event, arguing that the penalty was too harsh.
The arbitrator, after considering the evidence, found that the offensive words were spoken, and that discharge was a reasonable response. He declined to exercise his arbitral discretion to reduce the penalty.
The employer had, as required by law, a workplace violence and harassment policy which among other provisions, prohibited racial or ethnic harassment in a broad manner, including remarks or name-calling. It also forbids conduct which might tend to create a poisonous work environment, including degrading comments or bullying.
The collective agreement limited termination by requiring just cause and otherwise required progressive discipline, excepting in cases of “serious violations”.
In prior decisions dealing with termination for racial slurs, the language was “egregious” and the employees had prior disciplinary records.
The arbitrator accepted the employer’s argument that racial slurs are a serious violation, so termination was on the table. This was consistent with the workplace and violence policy, the Human Rights Code, and the Occupational Health and Safety Act. Over recent years, our understanding of the harm, caused by “microaggressions” has grown, so what was once excusable, or might result in minor penalties, must be repudiated.
However, it was not a situation of ‘zero tolerance’ so mitigation factors were applicable. He then considered whether it was just in all the circumstances.
He considered the mitigating factors listed in other situations and found that only a few applied to cases of racial slurs:
“(a) whether the act arose in the context of a momentary flare-up; (b) by an employee with no prior incidents of a similar nature; (c) for which the employee has made a timely apology; (d) coupled with the showing of genuine remorse to restore confidence that the employee has recognized the seriousness of the misconduct and is unlikely to reoffend. Not even long service and advance age, in my opinion, can outweigh the prima facie appropriateness of terminating the employment relationship, where seniority can never be license to engage in deliberate racist taunts.”
Because the offensive language was repeated, the excuse of “spur of the moment conduct” was rejected as a mitigating factor.
There was no timely acknowledgement of the wrongdoing, so no genuine remorse was demonstrated.
In the end, the arbitrator could not say with confidence that the grievor had learned his lesson, or was unlikely to reoffend. The employee’s long service was not in itself enough reason to reduce the penalty, The discharge was upheld.
This sends a strong message to employers and employees alike. Employers have an obligation to maintain a workplace which is free of harassment. Use of racial slurs directed towards a coworker is harassment.
Although this decision was in a unionized workplace, and turned in part on the interpretation of the termination for cause wording in the collective agreement, a similar result is likely in a non-union situation, as all employers have similar duties to employers, and this result is consistent with trends to give weight to the protection of human rights.
There is a positive duty to combat racism to ensure a safe and respectful workplace. Although not a situation for a ‘zero tolerance’ policy, racial slurs are a form of harassment which require a serious response, up to and possibly including termination.