Educator’s suspension for racist remarks lowered to 3 days from 5 days by arbitrator

Alberta teacher's comments not malicious, but he had prior warnings

Educator’s suspension for racist remarks lowered to 3 days from 5 days by arbitrator

An Alberta teacher deserved a suspension for repeated incidences of racially insensitive comments but five days was too much, an arbitration board has ruled.

The 53-year-old worker was a high school teacher for the Calgary Board of Education (CBE), hired in 2014. He taught at a school with a diverse student body including 50 Indigenous students. CBE and the rest of the province had teaching quality standards (TQS) that required teachers to respect diversity and ensure every student felt safe.

The Alberta Teachers’ Association (ATA) also had a code of professional conduct that instructed teachers to teach respect “the dignity and rights of all persons without prejudice as to race, religious beliefs.”

On Nov. 20, 2019, the worker received a letter of expectation for using the “n” word in class while referring to an old rhyme. The letter instructed the worker to treat students with respect and dignity, and to be aware of his language when speaking to students.

On April 8, 2020, CBE issued a letter of reprimand to the worker for making derogatory comments about Indigenous people while coaching a student on the importance of attending class on time.

He told the student “You are unreliable and untrustworthy like a First Nations person” and that the student would do the minimum work “like a lazy Aboriginal person.” The worker said he used his own experience from construction work to motivate and insisted that the comments weren’t racist and “they are not all like that.”

The letter of reprimand stated that regardless of his intent, his comments were “inappropriate, unprofessional, and perceived to be racist.” He was warned that his role as an educator was to model good behaviour and he should avoid using stereotypes.

On June 12, the worker told a colleague that a student who had been selected to make school announcements was “just an arrogant person of colour.” This student had challenged the worker’s German culture as racist and the worker felt that the student wasn’t a positive reflection of the school because of his conduct. CBE investigated and the worker said that he “stereotypes at times due to his German upbringing” and he used the word “colour” after remembering his previous discipline and thinking it was fine.

CBE suspended the worker for five days and ordered him to enroll in a course about diversity and inclusion and unconscious bias. The suspension was with pay, as required under the Alberta Education Act.

The worker felt the five-day suspension was “large and heavy-handed,” particularly since he made the “colour” comment to a colleague and not a student. He filed a complaint seeking to rescind the suspension.

The arbitration board accepted that CBE was entitled to impose disciplinary suspensions as a way of progressively disciplining teachers under the Alberta Education Act, noting that the concept of progressive discipline provided teachers with the opportunity to change their behaviour before termination.

The arbitration board found that expectations for the worker were made clear through the code of conduct, the TQS, and his November 2019 letter of expectation before he received any discipline, and it was incumbent on him to educate himself on appropriate behaviour that fostered a safe environment that was free from racism. In addition, malicious intent was not necessary for a comment to be considered racist and damaging, said the board.

The board agreed that, given his prior discipline and the seriousness of the misconduct, a suspension was warranted. However, “the jump from a letter of reprimand to a five-day suspension appears… to be particularly steep,” and lost an element of progressiveness, the board said.

The board determined that a three-day suspension was a more reasonable step and would still send a strong message about the seriousness of the misconduct.  It set aside the five-day suspension and substituted three days instead.

Reference: Rast and Calgary Board of Education. Cheryl Yingst Bartel — arbitrator. Michael Ford for employer. Karen Tereposky for employee. Aug. 6, 2021. 2021 CarswellAlta 2004

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