'Racial slurs, sexual harassment, and discrimination are egregious as a starting point': lawyer
“We’ve seen an evolution of societal norms in the last six or seven years with social movements changing public perception and, more recently, trickling into court decisions where they're finding that racial slurs, sexual harassment, and discrimination are egregious as a starting point.”
So says Justin Turc, a labour and employment lawyer at McCarthy Tétrault in Calgary, after an Alberta arbitrator upheld the suspension of a worker who used a racial slur in a workplace disagreement.
“The arbitrator said, there's no place in the modern workforce for the use of the N-word, full stop,” says Turc. “And that really gets at the broader issue of last few years, where there's been a fairly significant shift in terms of what's acceptable in the workplace, not only on racial slurs, but with inappropriate comments about genders or sexual orientation - they're being treated much more severely and the courts [and arbitrators] are much more ready to see these offenses as supporting significant discipline, if not termination.”
The 76-year-old worker was a part-time deli clerk at a Safeway store operated by Sobeys in Hinton, Alta., since 2018. A Muslim man from Morrocco who came to Canada in 1976, the worker had a clean disciplinary record and was a shop steward for the union.
Safeway had a respectful workplace policy stating that a violation may result in discipline up to and including termination. The worker and all employees were trained on the policy, including the definition if improper behaviour in the workplace.
Employee conflict
On Oct. 25, 2021, the worker was working with another deli clerk. The worker told the co-worker that he was concerned that she wasn’t getting her job duties finished before she left and asked to make a list of tasks to be completed. However, the worker refused because she wanted to go on her break.
A little later, the worker saw the co-worker with frozen chicken meat. He thought she was headed to the sink, so he told her to put it in the microwave for a couple of minutes. The co-worker responded by saying he didn’t have to tell her what to do.
About 10 minutes later, the worker was in the cooler and, when he tried to leave, the co-worker was standing in the doorway. According to the worker, she yelled at him, “Look at me. I don’t want you telling me what to do.” The worker was shaken and asked her to let him go several times, and he touched her hand to move it. She eventually let him go.
About 15 minutes later, the co-worker asked the worker to do something and he replied, “I am not your [N-word].” According to the worker, there were no other employees or customers present and he didn’t say it loudly.
After the co-worker left, the worker reported the interaction to the assistant manager of the deli department, who advised him to file a complaint about the co-worker. He did so on Oct. 28, reporting that the co-worker had blocked him from exiting the cooler and spoke to him aggressively. He said he felt intimidated and threatened, as he was a small, older man and she was larger than him. He recounted the frozen chicken interaction but he didn’t mention his subsequent use of the N-word.
Employer investigation
A senior labour relations advisor interviewed the worker by telephone and the worker reiterated his account of events. Once again, he didn’t mention using the N-word. The advisor then interviewed the co-worker, who confirmed their exchange. She also reported his use of the N-word, so the advisor planned a follow-up interview with the worker.
Sobeys followed a good process when it broadened the investigation once it learned of the worker’s use of a racial slur and interviewed the worker about the new allegation, says Turc.
“Often, when an employer starts an investigation, it's based on a complaint about one thing and then the investigation can grow unexpectedly, and the complainant becomes the respondent, which is what happened here,” he says. “So it's important to be flexible and mindful that you might need to go back and put new information to someone, even though you've already talked to them about something.”
In a second interview, the worker admitted to using the N-word. He acknowledged that it was a derogatory term and inappropriate for the workplace. The advisor asked what he meant by using the word and gave him the opportunity to elaborate.
The advisor found both employees were equally accountable for their conduct that violated the respectful workplace policy. However, the company considered the racial slur and physical touching by the worker to warrant more serious discipline and it suspended him for one shift for behaviour towards a co-worker that was “disrespectful, vulgar, inappropriate, unprofessional and involved making a racial slur.” The co-worker received a written reprimand for her part in the conflict.
Union claimed excessive discipline
The union grieved the worker’s suspension, alleging that it was excessive discipline. It argued that the N-word meant something different to the worker, who didn’t know the term before he came to Canada, and he didn’t mean any offense as the comment was directed at himself. It also argued that the suspension was unfair compared to the co-worker’s discipline for the same incident.
The arbitrator noted that both parties agreed that discipline was warranted for the worker’s misconduct, particularly the use of the N-word, so the question was whether the suspension was appropriate.
The arbitrator found that, regardless of the explanation that the worker wasn’t as familiar with the meaning of the N-word, there was “no place in the modern workplace for the use of the N-word.” In fact, past decisions established that using that racial slur often leads to a lengthy suspension or termination, the arbitrator said.
The arbitrator added that the worker, although a person of colour, wasn’t Black and didn’t have “entitlement” to use the word in any way. The worker also couldn’t use the excuse of ignorance, as he had been in Canada for nearly five decades and it wasn’t credible that he didn’t understand the nature and context of the word, said the arbitrator.
The arbitrator also found that the worker’s explanations were “self-serving” and lacked credibility. This cast doubt on whether he fully understood the seriousness of his misconduct and “suggests that he has not learned his lesson,” the arbitrator said.
Serious misconduct
The arbitrator noted the worker’s length of service, clean record, it was a momentary outburst, and the fact that he didn’t direct the racial slur at anyone, but said that using the N-word was “extremely serious.” Given that using the slur often results in more serious discipline, the one-shift suspension was “a measured approach” by Sobeys, said the arbitrator.
Aggravating factors included the fact that the worker was a shop steward for a union with a diverse workforce, the outburst happened in the store where customers and employees could have heard him, and the worker didn’t apologize or demonstrate any meaningful remorse, the arbitrator said.
Finally, the arbitrator disagreed with the union’s argument that the discipline was unfair. The worker used the N-word and the co-worker did not. The suspension was for that, not just violating the respectful workplace policy, and it was within the reasonable range of employer responses, said the arbitrator in dismissing the grievance.
Turc points out that the worker’s misconduct only came up in the context of an investigation for his own complaint and there was never a complaint against him for the comment.
“Employers should be encouraging employees to bring forward concerns and inappropriate conduct in the workplace, because here's a situation where two co-workers weren’t getting along and who knows if [the racial slur] would have come to light if the other complaint wasn't made,” he says. “These are real issues in the workplace and they're ongoing – it’s not enough to have a policy and to train people on it, you need a culture where you're encouraging employees to bring forward their concerns in a timely manner so that you can best deal with them.”
