When harassment or discrimination occurs in the workplace, it can quickly become a large and complex issue. It is then the employer’s responsibility to ensure that the issue is addressed and resolved efficiently and appropriately. In cases where racism is involved, an employer’s response may still not feel adequate for those affected.
In a recent decision from the Human Rights Tribunal of Alberta, an employee claimed that a colleague’s use of a racial slur at the work reflected a poisoned work environment which was tantamount to discrimination.
Racial slur used during work meeting
In Tolentino v His Majesty the King in right of Alberta (Alberta Justice and Solicitor General), the complainant (the “employee”) was one of several employees in attendance at a mandatory workplace video meeting on January 14, 2021. The employee was the only employee at the office who identifies as black. The meeting began with some informal conversation before it officially began. During this time, another employee (“TJ”) made a series of comments regarding rap music and “black music”, complaining that “they” could use a derogatory word, which she stated in full, but she could not. TJ went on to say that rap music is violent, promotes a violent lifestyle, and is overly sexual.
When this happened, the employee urged TJ to stop the conversation and stated that TJ “cannot use that word” and that her comments on black music denigrated a whole genre because of a “few bad apples.” TJ eventually wrote “I apologize that I don’t approve of the inappropriate words they use in today’s music” in the chat function of the meeting.
Following this incident, the employee went off work on medical leave and received benefits from the Workers’ Compensation Board of Alberta. TJ was originally terminated after the incident but grieved the termination and was instead given a 10-day workplace suspension.
Establishing discrimination in the workplace
The employee alleged that her employer and the respondent discriminated against her during the course of her employment on the grounds of race, colour, ancestry, and place of origin, contrary to section 7 of the Alberta Human Rights Act. The employee also claimed that she was subjected to a “poisoned work environment” as a condition of employment when she was exposed to the racist comments made by TJ.
The Court explained that the onus is on the complainant to establish a prima facie case of discrimination by demonstrating that:
(a) She has a characteristic protected by the Act;
(b) She suffered adverse treatment or an adverse impact; and
(c) Her protected characteristic was a factor in the adverse treatment or impact.
These are known as the Moore principles and stem from a 2012 decision issued by the Supreme Court of Canada. In situations dealing with allegations of a poisoned work environment, the complainant must show that they suffered an adverse impact because of their protected characteristic, as well as a connection between that characteristic and the poisoned work environment.
The Human Rights Tribunal considered evidence presented by others who were in attendance at the meeting where the incident occurred, and found that the statements made by TJ were “racially charged” and had there not been the immediate and continuous effort by the respondent to address the incident, the employee could have easily been exposed to a poisoned work environment. However, review of the respondent’s policy and action plan indicates that discrimination of any sort is not tolerated and allegations will be investigated and could lead to dismissal.
The employee told the Human Rights Tribunal that the employer’s response to the incident did not speak directly to her concerns, and that the events led to secret conversations and gossip. She also felt as though she was blamed for TJ’s termination. She told the Human Rights Tribunal she felt the incident should have been discussed at work, but it was not. However, the Tribunal also heard that the employee had been offered counselling but did not elect to participate. The employee also told the Human Rights Tribunal that the words spoken by TJ made her feel different in the workplace and that the silence from the rest of the employees made her scared of repercussions. She said she felt nobody had stood up for her and that she felt ostracized in the workplace.
Upon review of the evidence, the Human Rights Tribunal found that, while some case law suggests one incident is enough to create a poisoned work environment, this single incident would “not demonstrate to an objective reasonable bystander that a poisoned workplace environment was created.” The Human Rights Tribunal found that while the comments made by TJ were unacceptable and constituted a breach of the Respectful Workplace Policy the employer had in place, the opinions expressed were just those of one employee and were not shared by others.
The Human Rights Tribunal also found that, had the employer not disciplined TJ, there could have been a finding of a poisoned work environment. However, because TJ was terminated, which resulted in a suspension instead, the same could not be found. The Human Rights Tribunal found that the employer “took significant steps prior to, and after the incident to address discrimination and racism in the workplace and to prevent a poisoned work environment.”
Contact the Employment Lawyers at DBH Law for Advice on Navigating Racism and Discrimination in the Workplace
The knowledgeable employment lawyers at DBH Law in Calgary understand that issues in the workplace, particularly relating to those allegations of harassment and discrimination, can be stressful, disruptive, and time-consuming. As such, when a workplace-related issue arises, it is important to seek legal advice as soon as possible in order to protect your interests and work towards a timely and effective resolution. To learn more about how we can help you, contact us online or by phone at 403-252-9937 to schedule a confidential consultation.