Ontario Arbitrator finds that one instance of racial slurs creates the rebuttable presumption that termination is within the range of reasonable disciplinary responses.

The Ontario arbitration case of Levi Strauss & Co. v Workers United Canada Council makes a much welcome statement that racist and derogatory comments have no place in the workplace, and an instance of such misconduct can ground termination. 

Mr. Merraro, a Black man, was employed by a distribution centre operated by Levi Strauss & Co. in Ontario. About two weeks into his employment, Merraro was subjected to racial slurs from his white co-worker, Brown, after Merraro pulled an emergency cord to stop the building's conveyor belts. Surveillance footage showed that after pulling the cord, Brown approached Merraro with what was described as "a noticeably aggressive gait" and engaged in an intense face-to-face discussion for approximately twelve seconds. Merraro then followed Brown down the stairs to the supervisors' office area where they engaged in a further verbal exchange. The employer investigated the incident, and it was revealed that Brown had been swearing at and directing racially disparaging comments towards Merraro. Witnesses also heard Brown referring to him Merraro using racial slurs and epithets, stating that he would "kill" Merraro for shutting down the lines and that he would get Merraro fired. After the incident, Brown gloated that he "got rid" of Merraro while using the same disparaging language. During the investigation, Brown failed to admit his wrongdoing or demonstrate remorse. 

Following the investigation, the employer terminated Brown's employment for violating its Violence and Harassment policy on the basis that he made derogatory racial slurs, engaged in threatening language and regularly shouted/used profanity directed towards other employees. Brown had 23 years of service and a clear disciplinary record.¹ The union filed a grievance alleging that the discharge was an excessive penalty. 

The Arbitrator upheld the employee's termination on the basis that his actions of making racially disparaging comments and slurs towards Mr. Merraro before, during, and after their verbal altercation (a period of approximately 10 minutes) constituted serious misconduct for which dismissal was within the range of reasonable outcomes. In doing so, the Arbitrator made important findings regarding where racial slurs or harassment falls within the spectrum of workplace misconduct and the appropriate discipline. First, the Arbitrator helpfully clarified that "racially demeaning language and racial slurs can never be excused as mere 'shoptalk' or having a lesser import when not directed at anyone in particular" as the comments lead to a poisoned work environment, which if not combatted can lead to the impression that minority groups are less entitled to equity.²

The employer argued that times have changed, particularly in recognizing the impact of racism in the workplace. There should be a presumption that any act of racial name-calling, even on just one occasion, results in automatic termination of employment or a "zero tolerance" standard. While the Arbitrator did not accept the "zero tolerance" standard absent a clear term in the collective agreement, given recent legislative initiatives reflecting the social imperative to prevent all forms of workplace harassment³ and changes in societal attitudes towards racism, the Arbitrator held:

"It is…now appropriate to regard any use of demeaning racial or ethnic slurs by one employee to another as very serious misconduct falling within the category of workplace offences that prima facie justifies terminating the employment relationship, amongst the appropriate disciplinary measures…that the employer is obliged to consider in response to workplace harassment, because of the hurtful nature of such conduct that undermines the smooth running of a diversified workforce.⁴"

Finding that racial harassment prima facie justifies termination means that once the conduct is proven, it is presumed that termination falls within the range of appropriate disciplinary measures. It then turns to the union to rebut the presumption by establishing that a penalty less severe than discharge is just and reasonable. 

This decision is an important development in confirming that racial harassment is not tolerated in the workplace and is worthy of serious employment consequences. The Arbitrator clearly considered the evolution of societal values and arbitral case law towards eradicating workplace racism and found that this required arbitrators to consider such conduct as being within "the most damaging category of malfeasance", justifying the presumption that termination falls within the range of reasonable responses.⁵

Furthermore, the Arbitrator found that when rebutting a case of racially intolerant or insulting language, the applicable mitigating factors include:

1. Whether the act arose in the context of a momentary flare-up;
2. By an employee with no prior incidents of a similar nature;
3. For which the employee has made a timely apology; and
4. The showing of genuine remorse to restore confidence that the employee has recognized the seriousness of the misconduct and is unlikely to reoffend. 

The other conventional mitigating factors of long service and advanced age are not relevant in this type of conduct because "seniority can never be a license to engage in deliberant racist taunts".⁶

Takeaways

This case is an important step forward in the jurisprudence surrounding racial harassment. It reflects serious consideration of factors such as changing societal norms, the abhorrence of racial slurs and epithets, and the legislature's emphasis on combatting harassment in the workplace in the development of the law. With this context in mind, the Arbitrator pushed the law forward by finding that the use of demeaning racial or ethnic slurs falls within the same category of theft, assault, and deliberate sabotage, which prima facie justifies termination of employment. With the recognition that these actions fall at the most serious end of the spectrum of workplace misconduct, employers are empowered to take decisive measures to combat such behaviour. While employers must be careful to still engage in an analysis of the relevant factors in disciplining employees (such as proportionality), this case is an important signal that racist attitudes and demeaning language cannot be minimized or tolerated in the workplace. 

¹ Brown had a clear disciplinary record within the "sunset period" of the prior 12 months under the Collective Agreement.
² Para 188, emphasis added.
³ i.e. changes to Occupational Health and Safety legislation to impose greater obligations to protect workers from all forms of workplace harassment.
⁴ Para 207, emphasis added.
⁵ Para 210.
⁶ Para 212.