When Colours, Animals and Work Don’t Mix

Written by Daniel Standing LL.B., Content Editor, First Reference Inc.

If there’s a main lesson in 2022 BCHRT 129 (CanLII), it’s to use a person’s name instead of animals and colours when referring to them. The reason? When racial slurs are issued at work, the buck stops with the employer, who could find itself vicariously liable along with the perpetrator employee for discriminatory practices The case also presents a best practice for employers who may be able to limit their liability with a rapid and effective investigation.

Background

The complainant, self-described as Black and Mayan, worked as a carpenter for a short time in 2019 for the respondent, a concrete company. It was there that he said one of his coworkers called him a monkey and an ape on two occasions. He said the treatment went unaddressed by the employer, effectively forcing him to quit with his dignity in tatters.

The Tribunal’s decision

Matters of this nature often turn on a witness’ credibility, but in this case, the BC Human Rights Tribunal’s job was made a bit easier: The co-worker acknowledged calling the complainant a monkey and an ape. He said, though, it was simply meant to convey a sense of carelessness on the part of his colleague, not as a racial slur.

The Tribunal didn’t accept that explanation. It observed that the words were hurled at the complainant as insults. It also explained case law establishing that when Black people are called apes and monkeys, this reinforces a subhuman stereotype that is rooted in colonialism and has been used to justify slavery and seizing Indigenous people’s lands. Given the long, negative history around the words, they are egregious and virulent when used to refer to a Black person.

Having found this bullying behaviour occurred, the Tribunal then examined whether it amounted to discrimination and whether constructive dismissal occurred.

Discrimination, it said, was made out because the complainant’s race, colour, ancestry and place of origin were at least factors in the way he was treated.

Constructive dismissal can occur when a work environment becomes so hostile and abusive that the employee has no other reasonable option but to leave. In this case, the Tribunal found the company, upon learning of the incidents, adequately investigated them, facilitated a meeting between the men, monitored the situation and eventually separated the workers. Unfortunately, the complainant left his employment before the investigation could be completed, despite the safety and support the employer-provided. Having done what it could, the employer couldn’t be held accountable for constructive dismissal.

Under BC’s Human Rights Code, the employer was liable for the discriminatory conduct committed in the course of his employment. To compensate him for injury to his dignity, the complainant was awarded $2,500.

Key takeaways

Periodic refreshers in the workplace on preventing harassment would probably be time well spent. When people come to learn the limits of acceptable workplace language, they may gain more confidence in recognizing discrimination and will perhaps think twice before uttering certain nicknames and other comments that, even if intended as a joke, can have a harmful, discriminatory effect. The case also teaches that context is everything. It’s a heavy burden on employers, and properly assessing an allegation starts with accurately gathering the facts.

When discrimination is alleged, the only valid way for an employer to proceed is by taking the allegations seriously and by rapidly and effectively investigating. An employer’s efforts to eliminate harassment should pay dividends if guided by the twin pillars of education and enforcement in the workplace.

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