Canada: Workplace Racism Allegations Should Be Taken Seriously But Don’t Presume Guilt

Last Updated: October 11 2013
Article by Howard A. Levitt

Most employers recoil from allegations of racism. And in all too many instances, it doesn't even matter whether the allegations are true to make the company want to settle.

That isn't surprising. As the Ontario Court of Appeal commented in a May 2013 case by Johann Johnson against General Motors, "an allegation of racism can reverberate for many years after the incident with potentially long-term consequences for all concerned." However, faced with such an allegation, GM refused to capitulate — and won.

Johnson, a black man and production supervisor at GM's Oshawa body shop was tasked with training group leaders. The mandatory training  was unpopular among union members, many of whom simply did not show up.

When Johnson reported Alex Markov for skipping this training, Markov told management that eight years earlier Johnson had laughed when hearing another supervisor make an insensitive reference to Markov's brother's murder. Markov had resented Johnson ever since and now refused to train under him.

Johnson flatly denied this incident ever took place.

Then another group leader told Johnson he had heard that to avoid Johnson's session, all one had to say was that they were "prejudiced like the last guy whose brother was killed by a black man." Johnson was infuriated. He did not bother seeking clarification or to ask for the source of this  information.

He asked another group leader about the circumstances of Markov's brother's death and was told he had been killed by a black man. Again, Johnson accepted this at face value.

Based solely on these two statements, Johnson decided that Markov's apparent bias against black men caused him to refuse Johnson's training. He complained of discrimination to the plant manager.

In the ensuing weeks, GM conducted three separate internal investigations into Johnson's complaint, all of which found that Markov's conduct was not racially motivated. But it was too late. Johnson now viewed his workplace as poisoned.

Johnson took a two-year leave after which, GM's plant physician deemed him fit to return to work. When he refused to work with Markov, GM offered him two equivalent positions in different locations. Johnson declined both, claiming to be disabled from working in any GM plant and sued for constructive dismissal, alleging he had been subjected to a poisoned, racist work environment.

The Court of Appeal concluded there was no basis for Johnson's allegation that Markov's conduct was racially based. In addition, this single allegation of Markov's refusal to attend Johnson's training session relative to Johnson's eight-year employment was insufficient to support his claim of a poisoned work environment.

With respect to his refusal to take the other positions on the basis he might run into Markov, the court said: "The mere possibility of contact with body shop employees, including Markov, does not alone establish that such exposure would result in future discriminatory treatment of Johnson."

GM had reasonably addressed Johnson's accusations by its multiple investigations and its offer to relocate him. Johnson was found to have resigned  from his employment and was not entitled to any damages.

The Court of Appeal's message is, "given how serious judicial findings of racially motivated conduct in the workplace and a poisoned work environment" are, they must be carefully scrutinized by the court. The same will likely apply to any allegation of discrimination based on gender, handicap or sexual orientation.

Equally significant are the implications for employers in approaching such complaints which, as the Court of Appeal found, can be investigated by your own employees:

Promptly investigate - Do not dismiss an employee's complaint of discrimination. Treat it seriously and immediately start the process of investigation.

Ascertain complainant's interests - Often an employee may be satisfied with a reasonable explanation or an apology. That informs the employer of the gravity of the offense and how it ought to respond. The Court found that Johnson had accepted apologies from the group leaders, which undercut his allegations of a hostile work environment.

Interview all relevant witnesses - Take the time to identify and interview those employees who can shed light on the facts.

Keep complete notes - Statements and outcomes of meetings should be recorded. The investigators' records are relied on by the courts in assessing the credibility of their recollections.

Don't presume racism - Unless the incident is blatant, refrain from passing judgment until all of the evidence is in and assessed. An allegation is just that,  until it is proven.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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