Canada: Make Workplaces Great Again: The "Locker Room Talk" Defence

A video recording was leaked two days before the second U.S. presidential debate of Donald Trump making lewd and sexually aggressive comments about women to an Access Hollywood reporter. In the debate, Mr. Trump characterized his comments as "locker room talk".

The "locker room talk" rationale may have made its debut in the presidential candidacy context that night, but it is certainly not a new concept in the employment context. A similar defence of "shop talk" has been asserted by employees who have been disciplined or terminated for insubordinate statements that are insolent, derogatory and contemptuous of their employer or for uncivil behaviour towards their colleagues and superiors, such as cursing and abusive comments.

For instance, in Lilydale Inc. v. United Food and Commercial Workers International Union, Local 1518, a 2014 decision, an employee at a poultry processing plant grieved his dismissal for failing to comply with company policy and engaging in intimidating, threatening and abusive behaviour.  He told a co-worker to "f*** off" when she warned him of the requirement to wear a beard net in the production area, loudly called other employees "f***ing b****" and "f***ing liar", and engaged in other conduct such as screaming at other employees and saying, "I hope your God strikes you dead".

Foul language was quite common at the plant and it had previously been largely ignored and rarely resulted in discipline by the company. The union argued that the workplace's unique culture excused his behaviour, given that rough language, including swearing, was the norm.  The arbitrator nonetheless found that the employee's behaviour amounted to verbal abuse of both his co-workers and managers. The conduct was exacerbated by the fact that he did not acknowledge or apologize for his behaviour, offer any justification, or commit to stopping the behaviour if he was given a chance to return to work.  Despite the fact that he had no significant discipline in his record, the employee's termination was upheld.

Similarly, in Hendrickson Spring - Stratford Operations and USW, Local 8773 (2015), two assembly and parts facility employees grieved their dismissal for harassing a co-worker. When the co-worker asked for assistance from one grievor, he told the co-worker, "Don't you know the f***ing are a nobody to me" and "what is your f***ing problem...don't be such a p****".  When the same employee reported safety issues to a supervisor, the other grievor called him a "f***king whiner" and threatened to "kick the f***ing s*** out of [him]". Both grievors engaged in other forms of harassment of this employee such as giving him the finger and making threatening statements including,  "you are a dead man".

The evidence indicated that foul language was common in the workplace and the union argued that any inappropriate comments were "simply shop talk". While the arbitrator acknowledged the concept of "shop talk", he held that certain statements, even if commonly used in the workplace, were not acceptable.  These included derogatory remarks about an individual's race, sexual orientation, disability, gender or other protected grounds of human rights legislation. Acts that could be characterized as bullying, threatening, or intimidation could also not be excused as shop talk.  The grievors also failed to show remorse, sympathy, or regret for their comments.  Termination was found to be excessive, but the arbitrator held that the behaviour warranted serious discipline and imposed lengthy suspensions.

"Shop talk" has also been addressed in the context of the employer's obligation to take all reasonable steps to prevent workplace bullying and harassment under provincial workers' compensation legislation. In  a 2014 decision, a painter filed a claim for compensation alleging that his co-workers had bullied and harassed him. He complained, among other things, of general behaviours that offended him, such as swearing, off-colour jokes, racist remarks, discussing women in sexual terms and use of nicknames, as well as nicknames and jokes directed specifically at the painter regarding his weight, personal hygiene and ethnic heritage.

The Workers' Compensation Appeal Tribunal found that while the derogatory comments of a general nature were "undoubtedly unacceptable in the workplace and should not be condoned", the conduct did not amount to bullying or harassment of the claimant as it appeared to be "the normal and accepted behaviour amongst this group of individuals" that was not targeted at the painter or intended to intimidate or humiliate him.  However, the specific nicknames and jokes did fall within the scope of workplace bullying and harassment as they were an attempt to embarrass and belittle the painter.

These decisions remind employers that while the defence of "shop talk" may provide some level of  excuse for rough language in certain workplaces where such language is common, it will generally not extend to excuse discriminatory remarks, verbal abuse, threatening or intimidating behaviours, or other statements or conduct amounting to workplace harassment and bullying. While each situation must be assessed on a case-by-case basis, significant discipline or even termination of employment may not be excessive, despite the employer's failure to previously address similar conduct, when the person who makes offensive or insubordinate statements fails to fully acknowledge or appreciate the inappropriateness of those comments.  Furthermore, to avoid any defences based on "shop talk", it is important for employers to be consistent with addressing inappropriate comments and dealing with such behaviour promptly if it arises.

As for Mr. Trump, it still remains to be seen as to whether his "locker room talk" will result in a termination of another kind – the effective termination of his bid for the presidential candidacy.

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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