Worker didn't meet onus to prove 'element of a protected ground, rather than just harsh words'
“Racism [in the workplace] tends to be very covert, so inference is always an essential component but, fundamentally, it’s the complainant’s obligation to make their case that it's more likely than not that racism was a factor [in poor treatment] – knowing there’s going to be a large component of inference necessary, [a complainant] at least needs the factual evidence so there’s a foundation to draw upon lived experience.”
So says Victoria-based labour and employment lawyer Michael Penner of Levitt LLP, after the British Columbia Human Rights Tribunal dismissed a worker’s racial discrimination complaint relating to altercations with a co-worker.
The worker started working for the City of Vancouver in 2011. Two years later, the city fired him for cause and the worker believed that the termination was racially motivated. After the worker grieved, the city agreed to reinstate him with 10-day suspension.
In 2016, the worker joined the city’s sewers operations branch, where he was the only Black employee. Two other employees called him the “n-word,” which started to make him distrustful of co-workers. The city suspended them for one day and required them to undergo coaching and training, but the worker felt this wasn’t sufficient. He filed a grievance and went off work due to mental health issues from June to September 2017.
According to the worker, when he returned to work he was “shunned and ostracized.” He decided to apply to be a city truck driver so he could work alone.
Workplace conflict
In June 2018, the worker drove a truck on an overtime shift hauling asphalt. Two days later, a co-worker found the truck with cooled asphalt in the bed. The worker claimed that the co-worker yelled at him and complained about “lazy drivers.” The worker also alleged that he shouted “You’ll be sorry if you ever touch my truck again.”
The co-worker later denied swearing at the worker, calling him lazy, or warning him against using his truck again. He acknowledged that he was angry because of the asphalt in the truck, but said it was a calm conversation.
Later that summer, the worker was a spare truck driver on a paving project. He claimed that the same co-worker leaned out of his truck, whistling at him before yelling for him to “get the f--- out of here” because other drivers were being laid off for the day. The co-worker denied this happened and payroll records revealed that the two employees weren’t assigned to the project at the same time.
On Nov. 7, the worker was crossing the road with another employee when the worker approached in his truck. The co-worker revved his engine and sped up, bringing the truck to within 10 feet of the worker. The worker had to jump away and, after the co-worker parked, the worker confronted him angrily. The co-worker swore at him and said “You people should be buried.” The worker believed that “you people” referred to Black people.
The co-worker agreed that the worker approached him aggressively and he swore at him, but denied making the “you people” comment. He apologized to the other employee and, according to the worker, he stormed into the locker room and they argued. When the worker said he would be making a complaint about the “you people” comment, the co-worker said he didn’t mean it and apologized.
Harassment complaint
The worker complained to the city about the incidents, later claiming that he said the co-worker was targeting him because he was Black. However, management’s documentation didn’t indicate that the worker mentioned race in his complaint.
The city investigated under its Respectful Workplace Policy and determined that the matter involved an interpersonal conflict. The investigator spoke with the worker and another employee, but not the co-worker. The worker filed a human rights complaint in March 2019 and the matter was transferred to the city’s legal department before the investigation was completed.
“This wasn't a sterling example of an employer’s response, but they responded to what might be considered a workplace harassment issue,” says Penner. “Oftentimes you will have a workplace policy that distinguishes between harassment on human rights grounds versus personal harassment that doesn't include a human rights element to it - it's a separate category.”
The worker’s human rights application alleged that the co-worker’s conduct in the three incidents was motivated by racism and the city failed to respond appropriately when he complained. He alleged that the city and the co-worker discriminated against him based on his race.
The tribunal found that there was some inconsistency with the worker’s version of events between his complaint and his testimony, along with differences with the co-worker’s and the city’s accounts. The worker acknowledged that is view of events was “retroactively coloured by his perception” that his negative experiences were connected to his race.
No evidence of link to worker’s race
The tribunal found that it was likely that the truck cleaning incident fell somewhere between the worker’s and the co-worker’s accounts. It accepted that the co-worker angrily confronted the worker about hardened asphalt left in a truck and swore at him in public, but found no evidence to suggest that this behaviour was racially motivated.
As for the incident on the paving project, the tribunal found that the co-worker couldn’t have been involved, citing payroll records showing that the two employees didn’t work together on the project, which supported the co-worker’s account.
The tribunal found that the dangerous driving incident in November 2018 did happen. While the worker alleged that the co-worker yelled, “You people should be buried," the tribunal wasn’t persuaded this comment was racially discriminatory. The tribunal found that the incident stemmed from a heated exchange unrelated to the worker’s race, while the co-worker said that he had felt threatened by the worker’s aggressive behaviour afterwards.
The tribunal made a point of recognizing that direct evidence of racial discrimination was rare and there was “a broader social context of ongoing and pervasive anti-Black racism in Canada.” In addition, the worker’s perception was affected by his experience of racism in the workplace and in general, said the tribunal.
However, the tribunal found that the worker didn’t establish that his workplace was poisoned by discrimination that would support an inference that the co-worker’s actions were motivated by race, and the co-worker had non-discriminatory explanations for his behaviour. In addition, the co-worker didn’t make any direct reference to the worker’s race – there was no evidence that the “you people” comment was a reference to Black people, said the tribunal.
Complaint to employer didn’t include racism allegations
As for the city’s response to the worker’s complaints, the tribunal determined that the worker didn’t explicitly inform the city that he believed the co-worker’s actions were racially motivated, nor did the city have sufficient context to infer that discrimination was an issue. While the city failed to complete its investigation into the allegations, this failure didn’t amount to a violation of the BC Human Rights Code, the tribunal said.
“[The worker] approached the employer, identified a problem, and the employer acted on it, but when things fell apart, it was primarily the fault of the [worker] for not initially characterizing the problem as one predicated on racism,” says Penner. “Because it was a human rights application [before the tribunal], the onus was on the complainant to show that the treatment he received had that element of a protected ground, rather than just harsh words or poor conduct.”
The adjudicator acknowledged that the co-worker’s conduct and the city’s response were questionable, but the worker wasn’t able to show that they were tied to his race or any other protected ground, adds Penner.
“[The adjudicator acknowledged] that the worker was sincere in his belief that these activities were racially motivated, but when his story and the employer’s story didn’t match up, the evidence buttressed the employer’s story,” he says.
Adverse treatment not racially motivated
The tribunal determined that the worker suffered from adverse treatment at work, but the evidence didn’t establish that his race was a factor. The worker’s discrimination complaint was dismissed.
The city could have neutralized the dispute at the outset by asking better questions and talking to the worker, according to Penner.
“Usually, there are workplace harassment protocols where you fill out a form dedicated to that purpose, but there’s still that human element where a simple conversation can go a long way,” he says. “The words on the paper rarely capture the subjectivity behind the complaint - for someone to come forward, they're usually quite motivated because something has really bothered them on a personal level.”
“Treating it in a routine, bureaucratic process strips some of those fundamental elements away, and at the same alienates the complainant, because all of a sudden, it's just simply a problem to be solved rather than something that addresses the hurt caused by discrimination.”
