'There is no acceptable context' to using anti-Black slur in workplace: lawyer
An employer and three of its employees subjected a worker to racial harassment through racial slurs and failing to adequately address his complaints, according to the British Columbia Human Rights Tribunal.
The worker – who identifies as a Black African Canadian – was a bridgeman scaffolder for Ruskin Construction, a contractor that provides bridge and pipeline construction services. His employment began in July 2019 at a worksite near Prince Rupert, BC. The worker lived in the province’s lower mainland, so Ruskin flew him to the worksite where he stayed in a work camp on a two-weeks-on, one-week-off schedule.
According to the worker, his foreman frequently made derogatory comments about visible minorities, used the “n-word” multiple times, and called Black people lazy. Around the end of August, a colleague made a written complaint saying that the foreman used the n-word in front of the worker and mistreated the co-worker because he was of Indigenous descent.
The project manager investigated and the worker provided a written witness statement. The worker and a union steward also met with the project manager to discuss the statement. According to the worker, the manager used the n-word repeatedly in the meeting, saying that the worker was taking the n-word “personally” and asking if the foreman called him a fascist would he have been angry. After the meeting, another employee observed that the worker and the union steward were upset and shocked.
On Sept. 10, the worker reported the project manager’s conduct at the meeting to Ruskin’s construction manager. The construction manager said that he would investigate, although he didn’t speak to the worker about it after that.
Employer investigation
The project manager denied using the n-word, and after the investigation Ruskin developed two action items – the project manager should have a representative in meetings and Ruskin’s safety team should review the company’s harassment policy with employees.
On Oct. 2, the worker was socializing in his room when a co-worker entered and exchanged harsh words with him. They engaged in a physical altercation, during which the co-worker grabbed the worker’s neck and hair and pulled out one of his dreadlocks. According to the worker, the co-worker shouted threats and racial insults, including the n-word.
The next day, the construction manager suspended both the worker and the co-worker for two weeks.
The worker returned home and waited for a phone call with information on his flight back to the worksite, as was normal practice. However, he didn’t receive any communication and, on Oct. 11, Ruskin issued a record of employment (ROE) stating that his employment was terminated due to “shortage of work/end of contract or season.”
The worker filed a human rights application alleging discrimination based on his race and colour. He sought damages for injury to dignity, feelings and self-respect, as his exposure to racial slurs caused him to feel isolated and vulnerable at work. He also said that he felt fearful for his safety at remote worksites.
Employer denied discrimination
The company countered that no racial slurs were made against the worker, it didn’t need to fully investigate the worker’s complaint because he chose not to pursue it, there were no witnesses to the fight who could prove racial motivation, and the worker resigned from his employment.
The tribunal noted that a successful discrimination claim must show that the worker had a characteristic protected under the BC Human Rights Code, he experienced an adverse impact in his employment, and his protected characteristic was a factor in the adverse impact.
The tribunal found that it was more likely than not that the worker was repeatedly subjected to racial slurs by his foreman, which was an adverse impact based on his protected characteristic. The tribunal noted that the worker’s account was supported by the colleague’s complaint about the foreman and documentation by the colleague and the union steward at the time.
“In terms of credibility, the employer’s witnesses tried to downplay or contextualize the misconduct - they weren't denying things were said, and the one guy that did deny saying anything bad was the one who got into a fight with the [worker],” says Michael Penner, a Victoria-based labour and employment lawyer at Levitt LLP.
The tribunal also found that the project manager used the same racial slur multiple times during the meeting. The accounts of the worker and the union steward were consistent and the report of the employee who observed them after the meeting made this allegation credible, the tribunal said, noting that the project manager’s conduct, in the context of an official investigation, compounded the discrimination and poisoned the work environment.
Anti-Black racism
The tribunal also considered “the larger social context of anti-Black racism,” noting that the project manager’s attempt to characterize the worker as taking the n-word personally implied that the worker was overreacting, which played into the stereotype that racialized people are overly sensitive.
“The tribunal discussed how racial discrimination should be dealt with in the social context, and specifically about anti-Black racism and the use of the n-word having a unique context - essentially that there is no acceptable context,” says Penner.
The workplace in this case involved “rough and tumble tradespeople” at a remote work camp, but that didn’t change the seriousness of the worker’s treatment, according to Penner.
“There’s colloquial language used at those types of work sites that isn’t the same that you would experience in an office environment,” he says. “But there are limits to just being salty language and this went so far beyond that.”
The tribunal also found that Ruskin failed to properly investigate the worker’s report of the project manager’s conduct in the meeting. The company’s response was cursory and inadequate, lacking proper documentation, and it failed to interview the union steward or the worker, said the tribunal.
Ruskin claimed that the worker didn’t want to pursue the complaint, but that didn’t excuse the company from its duty to investigate, according to the tribunal.
Duty to investigate
“Once the misconduct has been identified, it creates the obligation on the part of the employer to fulfill its duty to investigate,” says Penner. “Once an employee discloses the information, they should be able to rely on the employer taking the appropriate steps at that point – there are all sorts of reasons why a complainant might not be vocal beyond reporting it, particularly if they're feeling unsafe within the worksite.”
“It would almost have been better for [Ruskin] to do no investigation at all, because it did a perfunctory one and mishandled it so badly that it made the problem worse rather than better,” adds Penner. “The fact that they took any step at all is at least implicit that they recognized there was harm - they had an opportunity to correct things and chose not to and painted the worker as the problem.”
As for the physical altercation, the tribunal found the worker’s version of events credible. It was likely that the co-worker was the aggressor since he entered the worker’s room uninvited, and he had no explanation for how one of the worker’s dreadlocks was pulled out, the tribunal said in finding that the assault was racially motivated.
Although Ruskin took the position that the worker resigned, the tribunal disagreed, finding that the worker’s employment had been terminated. The tribunal pointed to the inconsistency between the company's position, its failure to arrange for the worker to return to the worksite, and the ROE, concluding that the worker’s race and his complaints about racism were factors in his termination.
Damages for lost wages, injury to dignity
Ruskin, the foreman, and the two managers were ordered to pay the worker $71,065.12 in lost wages, $65,000 for injury to dignity, feelings, and self-respect, and $1,385.04 for counselling and legal expenses incurred because of the discrimination. In addition, Ruskin was required to review and update its workplace harassment and violence policy within three months and provide training on the updated policy to all staff.
Sixty-five thousand dollars is a higher-than-typical amount of damages for injury to dignity, particularly since there was no evidence from the worker of any health-related problems that flowed from the mistreatment, says Penner.
“The tribunal, I think, really wanted to make a point that the repeated use of the n-word is a specific and unique harm, and the gravity of this misconduct needs to be recognized and addressed,” he says. “I think that's ultimately what predicated a significantly high award of damages in this context.”
When an employer is presented with a discriminatory situation, the steps that it takes at the outset are key, says Penner.
“[Ruskin] really dropped the ball by not reacting appropriately and handling the investigation not only insufficiently but in a way that was so tone-deaf to the nature of the complaint, and then ultimately being disingenuous regarding the dismissal,” he says. “For employers, rest assured that if you're going to behave that poorly, you will suffer the legal consequences.”
See Sarba v. Ruskin Construction Ltd. and others (No. 2), 2025 BCHRT 74.
