Gone are the days when racist comments uttered in frustration could be rationalized as “locker room language” or “shoptalk” worthy of little to no discipline. Levi Strauss & Co. v. Workers United Canada Council, a recent Ontario arbitration decision, makes clear that racist language – whether directed at a specific individual or uttered as part of a general expression of frustration – has no place in today’s workplaces.
The case involved a verbal altercation between two employees of Levi Strauss & Co. (“Levi’s”) who worked in a Levi’s distribution centre. The employee accused of making racist comments, Gerald Brown, had been employed with Levi’s for approximately 23 years and had a clean disciplinary record prior to the incident. The other individual involved in the altercation was Stephen Merraro, a Black employee who had only been with Levi’s for two and a half weeks and was within his probationary period when the incident occurred.
Both Mr. Brown and Mr. Merraro were working in the area where the conveyor lines were located when Mr. Merraro suddenly shut down the lines. Mr. Brown got upset and uttered a series of racist expletives at Mr. Merraro, including calling him a “Black bastard” and mouthing the n-word in Mr. Merraro’s face. After the altercation, Mr. Brown also gloated to other employees that he “got rid of that Black son-of-a-bitch” and that he “got his fucking ass fired”. Levi’s summarily terminated Mr. Brown’s employment notwithstanding his 23 years of service and otherwise clear disciplinary record.
The Union filed a grievance on behalf of Mr. Brown, claiming unjust discipline and demanding that Levi’s reinstate Mr. Brown’s employment. The Union argued that, even if Mr. Brown had directed racial slurs towards Mr. Merraro, his termination in the context of an isolated incident was unreasonably harsh in the circumstances. To support its position, the Union relied on a number of decisions where arbitrators showed leniency towards “shoptalk” where the offensive words were not directed at an individual for purposes of “name calling”, but rather were uttered “off-the-cuff” or in the “spur of the moment” during a “momentary flare up”. The Arbitrator considered these decisions instructive in that they dealt with an isolated incident of shoptalk (rather than a pattern of abusive behaviour), but distinguished the cases on the basis that none dealt specifically with the use of racial epithets directed by one employee to or about another.
For its part, Levi’s argued that Mr. Brown had committed various acts of “workplace harassment”, in breach of Levi’s Violence and Harassment in the Workplace Policy and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, justifying Mr. Brown’s termination. Levi’s acknowledged that, in all of the decisions cited by it dealing with the issue of racism, the ultimate sanction of discharge was reserved for those situations where the employee already had a disciplinary record that was relied on in part to justify the termination. However, Levi’s submitted that times have sufficiently changed, and that the Arbitrator in this case should go further by adopting a “zero tolerance” standard for such conduct and finding that any act of racial name-calling in the workplace triggers the automatic termination of employment.
Microaggressions Are Expressions of Systemic Racism
The Arbitrator agreed that Mr. Brown had committed serious acts of “workplace harassment” in making racist comments to or about Mr. Merarro, emphasizing that racist comments of any kind contribute to a poisoned workplace environment, whether or not they are overt or directed at a particular individual. In this regard, the Arbitrator stated that even microaggressions are expressions of systemic racism that “cannot be ignored by an employer properly fulfilling its obligations to ensure a safe and respectful working environment” and that, in today’s world, “any suggestion that the usage of racially demeaning language or a racial slur can ever be relegated to mere ‘shoptalk’ in whatever form and in any circumstances, must in my view be repudiated in its entirety.”
However, the Arbitrator disagreed with Levi’s that any act of workplace racism should trigger automatic termination, finding that, subject to limited exceptions, the idea of a “zero tolerance” policy requiring automatic termination for certain offences has generally not been accepted in the jurisprudence. Instead, the Arbitrator found that the appropriate balance to be struck between the traditional “shoptalk” attitude and a “zero tolerance” standard is an approach that considers making a racist comment within the category of serious workplace offences prima facie justifying termination as an appropriate penalty. The Arbitrator also made clear that few militating circumstances exist to rebut the presumption that termination was appropriate in a given case, and that not even long service or advanced age can outweigh the prima facie appropriateness of terminating the employment relationship, as seniority can never be license to engage in deliberate racist taunts.
Termination Within Reasonable Disciplinary Responses
In this case, given the serious nature of Mr. Brown’s offences, his persistent denials and his failure to offer an apology, the Arbitrator concluded that terminating Mr. Brown’s employment was within the range of reasonable disciplinary responses by Levi’s, that this presumption was not rebutted by the Union, and that the Arbitrator should not exercise his discretion to reduce the penalty in the circumstances.
Although the Arbitrator refused to apply an automatic termination policy in cases of workplace racism, the decision in the Levi’s case nevertheless reflects a continued and gradual shift away from traditional ways of thinking about appropriate workplace behaviour and what constitutes just cause for dismissal. What was once considered to be mere “shoptalk” may now be sufficient to justify terminating an individual’s employment. Workplaces have changed and, as always, the law is close behind.
If you are an employer who would like to discuss how you can address workplace harassment, you can reach Marie-Hélène Mayer at 416.549.1686. Marie-Hélène is a bilingual employment lawyer who has been conducting workplace investigations for over a decade. She also conducts workplace assessments and advises on appropriate proactive measures.
2020 CanLII 44271 (ON LA).