Assessing Liability For Racism In The Workplace

Written on behalf of Arbesman Hamilton LLP

Despite making progress over the years, racism and other forms of discrimination still occur in the workplace. Of course, Ontario’s Human Rights Code (the “Code”) prohibits discrimination on race as well as other protected grounds such as gender and religion. Most people may think of discriminatory practices by an employer when it comes to violations of the code. However, employees can also be discriminated against by co-workers. A recent decision from the Human Rights Tribunal of Ontario addressed the Code’s ability how to handle situations where one employee discriminates against another, and how to determine if the employer was also in violation of the Code.

Racism in the lunchroom

The employee alleged discrimination with respect to employment because of race from an incident that occurred on November 11, 2014. The employee, who identifies as a black woman, is of Trinidadian ancestry. She was employed as a casual, part-time cleaner for the employer. On the day of the incident she was in the lunchroom with about ten other employees. One of them, identified as “JD”, is also black. After noticing that a computer on a shelf was on, JD asked “can someone turn that computer off?” A co-worker responded “What was your last nigger job?” The employee confronted the co-worker about it, but he replied by saying “so what.”

The employee and JD went to talk to their supervisor about the incident. The supervisor said there would be an investigation about what happened.

The fallout

Following the investigation the co-worker received a five-day suspension without pay. He initially denied making the comment, but eventually admitted to it, expressing remorse. The employee testified that she had heard the co-worker say the n-word before, and JD said he had also heard it said by others at the workplace.

While the suspension did occur, the employee testified she was not told of it. In fact, the employee said that except for a two-week period during the summer of 2015 she was not called into work. She filed the application in October 2015, and it was only at that time that she began to be called back to work. She testified that she had to work with the co-worker on two or three occasions, but she refused to interact with him.

The employee  testified that her relationship with her fellow employees was impacted by the events. She noted a culture or code amongst the workers that discourages employees from complaining about one another. In addition, she was also upset about the incident itself. She testified about feeling heightened anxiety that led to medical leave in January 2017.

The Tribunal’s Findings

The Tribunal highlighted two sections of the Code which were relevant. The first is Section 5(1), which reads “Everyone has the right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, reed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.” Discrimination based on any of these protected grounds is a violation of the Code.

The second is Section 10, which defines harassment as “engaging in a course of vexatious comment or conduct that is known to be unwelcome.”

The Tribunal then turned to the facts of the case in order to determine if the incident resulted in discrimination. In finding it did, the Tribunal wrote “ I am satisfied that the use of the term is inherently discriminatory and must be reasonably expected to be offensive and hurtful to any Black person. Indeed, it would be reasonably expected to be offensive to any person, regardless of race or colour, but especially so for a Black person.”

The co-worker was found to have been personally liable for discrimination. While the Code and common law also allows for an employer to be vicariously liable alongside an offending employee, the victim employee in this case had already settled with the employer. The settlement stated the employee could not claim any liability against the employer. As a result, the co-worker was found personally liable for “injury to dignity, feelings, and self-respect that the applicant experienced as a result of the personal respondent’s use of an inherently discriminatory term in the workplace.” The employee was awarded $1,000.

At Arbesman Hamilton LLP we help both employers and employees in matters of workplace disputes or incidents. If you are an employee who feels your rights, under the Code, or otherwise have been violated, we can help you determine whether you may be able to pursue damages. We can also help employers make decisions designed to avoid incidents like the one discussed in this blog post, while also representing their interests should there be an incident. If you are an employer or employee involved in an employment law matter, please call us at 416-481-5604 or reach us online to talk today.