A recent labour arbitration decision1 found the use of racial slurs by one employee towards another to be a serious workplace justifying termination. Rejecting the suggestion that racial slurs can be excused as mere "shoptalk", an arbitrator upheld the termination of a unionized employee with 23 years' service and a clean disciplinary record.
A verbal altercation broke out on a clothing distribution centre floor between two unionized co-workers. A white employee aggressively directed racial slurs towards his Black co-worker for approximately 10 minutes. The incident was witnessed by several racially and ethnically diverse employees.
Following an investigation, the company found the employee's conduct violated company policies. The workplace violence and harassment policy expressly prohibited all forms of "Racial/Ethnic Harassment", including slurs, "jokes" and inappropriate comments about a person's racial or ethnical background.
When challenging the termination at arbitration, the Union relied on the collective agreement, which required just cause be found prior to dismissing an employee. While the Union denied that the alleged racist conduct actually took place, it argued that it would have amounted to "shoptalk", rather than egregious workplace harassment justifying termination.
The Arbitrator rejected the Union's proposition that the employee's racist statements amounted to the "locker room language" or "shoptalk" historically acknowledged in the arbitral case law as attracting little, if any, discipline. He acknowledged the gaps in arbitral case law for instances of racial slurs made from one employee to another, and took notice of the growing but "regrettably all-too-slow acknowledgement"2 of the impact of racial slurs and microaggressions in the workplace.
Referencing the evolving social and political climate, and goals of eliminating workplace harassment, the Arbitrator held that it was appropriate to regard any use of demeaning ethnic or racial slurs by one employee to another as very serious misconduct falling within the category of offences that justify termination.
While not going so far as to accept the Employer's proposition that a "zero tolerance" approach be adopted requiring automatic termination in the circumstances, particularly where the collective agreement lacked a clear term to that effect, the arbitrator found that the alleged conduct was sufficiently serious to attract termination as a reasonable, justifiable disciplinary outcome.
Further, the fact that the incident was overheard in the workplace contributed to a poisoned work environment which, if not appropriately redressed, could have lead to the impression that minority racial groups were less entitled to equality.
Having added racial slurs made from one employee to another to the category of offences justifying termination, could be justifiable, the Arbitrator set out the appropriate mitigating factors to be considered:
- whether the act arose in the context of a momentary flare up...
- by an employee with no prior incidents of a similar nature...
- for which the employee has made a timely apology...
- 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.
Applying these factors, the Arbitrator declined to reverse or reduce the employee's penalty. The employee denied his wrongdoing and did not apologize or demonstrate genuine remorse. In addition, the incident was not a spur-of-the-moment incident, as alleged. The Arbitrator ultimately found the employee's actions were an attack on his co-worker and were also an affront to the company's diverse workforce as a whole. The employee's age, long service and clean disciplinary record were not persuasive.
Takeaway for Employers
This decision has the potential to impact future cases regarding slurs and microaggressions for both unionized and non-unionized employers and reflects the evolution of case law around eradicating workplace racism. Racial slurs can not be excused as "shoptalk" and require a serious response up to and including termination. For challenges to dismissals in similar cases, the mitigating factors applied by a decision-maker will likely expand beyond length of service and disciplinary record.
This decision is a reminder to employers to that a workplace violence and harassment policy is a tool that a company can use to reflect its commitment to human rights and occupational health and safety. Employers have a duty to provide a workplace free from discrimination and harassment. In this case, a fulsome policy with a clear definition of harassment assisted the employer in justifying the decision to terminate, not withstanding the presence of a collective agreement requiring progressive discipline.
1 Levi Strauss & Co. v Workers United Canada Council, 2020 CanLII 44271 (ON LA).
2 Ibid at paragraph 206.
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