Employer wasn't found to have engaged in any discriminatory conduct or any breaches of the code
The Ontario Human Rights Tribunal has ordered an employer to pay a worker $2,500 in damages racial slurs from other employees. Despite the small damage award, Mike Hamata, an employment lawyer at Roper Greyell in Vancouver, sees this as a successful case for the employer.
“It's important to separate the fact that the employer got stuck with damages from the fact that the employer itself didn't wasn't found to have engaged in any discriminatory conduct or any breaches of the code,” says Hamata.
“There's no liability for the employer in this decision – just by operation of the Human Rights Code, the employer had to pay for the discrimination of its employee [by other employees].”
Racial slurs
Whitewater Concrete is a concrete forming company in Coquitlam, BC. The worker joined Whitewater on March 5, 2019, as a carpenter.
The worker was from Honduras and identified as a member of a group of from Latin America with both Black African and Indigenous ancestry, distinct from Latino people. The worker regularly worked with three co-workers – a father and two sons – who were Latino and spoke Spanish.
According to the worker, in April and September 2019, one of the sons called him Spanish terms meaning “monkey” and “ape” instead of by his name. The worker found it disrespectful and believed that they were in reference to his ethnicity and ancestry.
The co-worker acknowledged calling the worker those names, but he didn’t mean them as racial slurs. He said they were intended to describe the worker as careless and in reference to his archaic views about women at work.
The worker also claimed that the same co-worker called him a Spanish slang word for vagina because of his curly hair. The co-worker claimed that he didn’t know what the slang meant, which was supported by another Spanish-speaking employee who said that the term meant “corn” where he was from.
The worker also alleged that the father sang a song to him in Spanish with lyrics referring to his race. He didn’t recall when or where, but the father denied singing those lyrics and said that they had discussed a song with such lyrics as part of “friendly conversation about music, culture, memes, and jokes.”
In September, the worker told the foreman that the father and sons were calling him names. The foreman met with them and they all denied the name-calling and said they had a disagreement about a task. The meeting ended with them all shaking hands and accepting that the matter was resolved.
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Escalating argument
According to the worker, on Nov. 4 the two brothers escalated an argument with racial slurs and the father walked over and shoved him in the chest. However, when he reported the incident, he didn’t refer to any racial slurs and said that the father punched him.
A witness to the incident testified that there was no assault and the father stepped between them and put out his hands. The worker leaned into the father and may have come into contact with his hands, but the worker immediately moved sideways, said the witness. The father admitted to calling the worker “stupid” but he denied touching the worker.
When the foreman learned of the incident, he moved the worker away from the others, but the worker said he was going to quit instead. He told the foreman that “one of the guys” put his hands on his chest, which he characterized as an assault.
The foreman spoke to the employees who saw or were involved in the incident and confirmed that there was yelling but no physical touching. Whitewater investigated, interviewed everyone involved, and reached the same conclusion.
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Circulated policy
Whitewater recommended that all employees review the workplace bullying and harassment policy.
“The employer provided a reminder of the policy to all employees after it had had a complaint and done an investigation, and that was a good step forward to take,” says Hamata. “But even better is for employers to provide those kinds of updates and regular training on harassment and discrimination policies to its employees on an ongoing, regular, annual basis, and not just wait until after you get a complaint.”
However, the worker resigned and filed a human rights complaint, alleging that Whitewater failed to adequately respond to discrimination in the workplace and created a poisoned workplace that caused him to quit his job.
The tribunal found that there was sufficient evidence that the worker was a called a monkey and an ape, as the co-worker acknowledged making the comments. Regardless of the co-worker’s intent with the comments, the social context of referring to a Black person with those words was to reinforce a stereotype that they were “subhuman and not equal to others.” Europeans used such terms to deem Black and Indigenous people as primitive and less civilized in order to justify slavery and seizure of lands, said the tribunal, finding that the words had cultural baggage and constituted “egregious and virulent” slurs against the worker.
The tribunal also found that the worker’s own experience as a Black and Indigenous person was sufficient to find that racial slurs had adverse impacts on him without additional evidence.
The tribunal noted that there was no evidence that the terms meant “careless” in Spanish and the co-worker acknowledged that part of his intention was to call the worker primitive.
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No proof of additional discrimination
However, the tribunal disagreed that the co-worker made other discriminatory insults, as the evidence of witnesses and the co-worker indicated that the slang word meant different things in different Spanish-speaking countries. In addition, the worker was vague on when the co-worker used the term.
As for the father singing a racially motivated song, the tribunal found no evidence that he referenced the song lyrics in a derogatory way and believed the father’s version regarding a conversation about music and other topics.
The tribunal also didn’t believe that the father assaulted the worker, based on credible accounts by the father and the witnesses.
The fact that the co-workers admitted to some of the name-calling strengthened their credibility in the tribunal’s eyes, says Hamata.
“I read this as the tribunal sort of saying, ‘They were willing to acknowledge some wrongdoing, so I find their denial of the rest of the wrongdoing credible’” he says. “It's very difficult to be in the tribunal member’s position to be making a call on the basis of credibility and oral evidence, but that's one thing that I think helps the decision-maker in this situation.”
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Immediate action
The tribunal also found that Whitewater adequately addressed the issues when made aware of them. The foreman took immediate steps to resolve the matter in a meeting and the worker seemed satisfied. When the foreman learned of the argument, he also addressed it and Whitewater investigated, making sure that employees were aware of the harassment policy, said the tribunal.
The tribunal determined that the worker was discriminated against when the one co-worker called him a monkey and an ape on two occasions. However, none of the other allegations of discrimination or that Whitewater didn’t adequately address his complaints were proven.
Whitewater was ordered to pay $2,500 to the worker for injury to his dignity from the monkey and ape comments, but no damages for constructive dismissal as the worker was not forced out of his job.
The case raises another question that wasn’t really addressed in the decision, says Hamata.
“The employer did all the right things, at least after the incidents were brought to its attention,” he says. “But what is the duty for employers to proactively sample the workplace to see if there may be discrimination going on that that it doesn't know about? That wasn't a basis for liability in this decision and wasn't really considered.”
“It's a good reminder to employers to look at their policies, look at their training schedule, and ask themselves when they last did some refresher training for existing employees on what is appropriate, what's inappropriate, what's discriminatory in the workplace, and how to raise a complaint early so it doesn't fester, escalate, and become a bigger problem.”
See Martinez Johnson v. Whitewater Concrete Ltd. and others (No. 2), 2022 BCHRT 129.
