The ugly reality of immigration (On Law)

Racism still exists in Canada and the costs of ignoring it could be tremendous

As the world becomes increasingly connected, the recruitment of foreign workers to Canada becomes more common. Workers are recruited for their skills and expertise in all sorts of areas to join large conglomerates as well as small businesses.

Unfortunately, some newly arrived workers are exposed to racial slurs or actions. It’s an ugly reality.

Employers have a duty to protect all workers to ensure workplace environments are free from harassment and discrimination. If this duty is breached it may be held liable.

Race a factor in firing

In Smith v. Mardana Ltd., the Ontario Superior Court of Justice overturned a human rights tribunal’s decision that race was not a factor in the termination of Mark Smith. Smith, who was black, was ex-employee of Mardana, an auto repair garage. He alleged that both he and other black workers were subjected to hurtful taunts, racial slurs and name-calling in the workplace over a three-year period.

At one point Smith was threatened with termination due to his reaction to a racial slur directed at him. In August 1995 he was dismissed for, allegedly, refusing to help another employee. He was told shortly thereafter that he had been laid off due to a lack of work. But two weeks later a Caucasian employee was transferred to Mardana to replace him. In November 1995 Smith received a termination letter citing his performance as cause for dismissal.

The tribunal found race was not a factor in the company’s decision to terminate Smith. It also found, notwithstanding that Smith was subject to racial harassment and a poisoned workplace, the infringement of Smith’s right to be free from such a poisoned atmosphere was not willful or reckless. On that basis, the tribunal found Smith was not entitled to compensation for lost wages or mental anguish.

Smith appealed that ruling, and the Ontario Divisional Court disagreed with the tribunal. It said race had played a factor in Smith’s termination and the employer was, at a minimum, reckless in its infringement of his right not to be subjected to racial harassment and a poisoned work environment.

It awarded Smith $25,131 in lost wages and $10,000 for mental anguish. The court said the employer was reckless, if not willful, in allowing a poisoned work environment to exist. The employer was also ordered to implement a workplace harassment policy, staff training and an internal complaint process and to provide management with human rights education under the supervision of the Ontario Human Rights Commission.

Disturbing case of racism on Quebec farm

In another case, in front of the Quebec Human Rights Tribunal, four workers were awarded $62,500 in damages including $5,000 in punitive damages each.

The case involved the Centre Maraîcher Eugène Guinois Jr. Inc., a 1,300 acre family-run vegetable farm in Ste-Clotilde de Chateauguay, about 45 minutes southwest of Montreal. As part of its workforce, the farm — which does about $8 million in business each year and has a total workforce in the neighbourhood of 250 — employed about 100 black workers as day labourers. These workers commuted from the Montreal suburb of Longueuil. They were paid $350 per week.

Although the farm had a nice cafeteria, the black workers were not permitted anywhere near it. The workers had to eat and change in a dirty shack that was not being cleaned, had no running water and no heat. It had four microwaves but only one was functional and it was too dirty to use. The refrigerator was also broken and the toilets did not work.

Graffiti on the farm referred to the black workers as “monkeys” and “pigs.” The day before one of the four workers was fired, he was accused of staring at a white woman’s rear end. When he attempted to deny that, the woman stuffed a handful of carrots in his mouth. Although he complained to the woman’s supervisor and the owner’s daughter, who was in charge of human resources, they rebuffed his complaint.

Upset at the events, he left with the three other workers who normally rode with him to and from work. They received permission to leave early because they had no other way home. Two days later, all four were fired.

During the hearing, the owner’s daughter admitted that the shacks had been built for the black workers because other workers complained that their food smelled. Fingers were also pointed at the black workers for the deplorable conditions of the shack. The shack was so dirty that the cleaning staff refused to enter it to clean it.

The tribunal refuted the employer. It said the black workers were a proud, clean and neat people. It said the shack was disgusting because no one bothered to clean it. In addition to the damages, the farm was ordered to stop all discriminatory behaviour.

What employers can do

Despite education and the social stigma of racism, it still exists. What does the employer do if it has a racist in the workplace?

Employers should have a workplace harassment policy that includes an internal complaint process. Policies and procedures must be in place to ensure the organization adheres to its duty to provide a safe and healthy work environment for all employees.

And paying lip service to the policy won’t cut it — employers have to follow it and adhere strictly to it. If a supervisor is approached with a workplace issue, that supervisor must address the issue according to the policy in place. The proactive employer will have had its employees participate in staff training and human rights education.

Racism and harassment cannot be tolerated. Employers need to understand and communicate to all workers the enormous social and financial costs that come with allowing discrimination and harassment to exist.

Natalie MacDonald is an associate with Grosman, Grosman and Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].

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