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Racist Comments Are Wrong – But Still Happen At Work

How one Employer in Alberta recently handled an investigation

In preparation for our upcoming workshop in Alberta, I thought I would research an Alberta case this time around. As always, it provides great learnings for the Investigator in all of us. I look forward to meeting those of you attending our sessions and getting into the business of asking questions!

This case occurred in Edmonton and was heard by an Arbitation Panel. The Arbitration flows from Mr Smith’s grievance related to his dismissal. Mr Smith was a heavy duty mechanic for about two years prior to his dismissal for making disparaging and racist comments to a co-worker. Mr Smith denied making the comments. Part of the agreed statement of facts was reference to Mr Smith having undergone the Employer’s Respectful Workplace training and reference that he was provided documentation to that effect.

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The incident that led to Mr Smith’s dismissal was documented in email amongst the management team of the employer and details the statements Mr Smith is said to have made to a fellow employee which include: referring to him as a “monkey”, and saying “I am going to use your black skin to wrap around my steering wheel”. The statements were witnessed by two co-workers, over the course of a few days and on one occasion a co-worker attempted to intervene.

Interestingly, both Mr Smith and the target of the comments, Mr Jones were fairly recent immigrants to Canada. Mr Smith had immigrated from Romania and Mr Jones had immigrated from Sudan. Both men had learned English as a second language before they began working together. The relationship between the two seemed fine before the incident. Mr Smith had some extensive dental work done and returned to work. Mr Jones thought that perhaps Mr Smith was being affected by some medication he was on as Mr Smith started making racist and offensive comments to him. Mr Jones did not know what to do and was upset in the workplace.

In his testimony Mr Smith referring to being at the dentist and recovering from anesthesia. He referred to a discussion involving animals in Africa, but denied calling Mr Jones a “monkey”. He also denied swearing at him and referring to his mother in a derogatory fashion. He testified that he had made a reference to Mr Jones’ skin being soft and compared it to a steering wheel leather. He said that discussions on Mr Jones’ skin texture were not uncommon and he did not believe the were offensive. Mr Smith asked the Arbitration panel to check with witnesses, who he was sure would support his version of the events.

WItness testimony confirmed Mr Jones’ testimony and directly contradicted Mr Smith’s. The employer interviewed all involved. It was noted that in some of the witness testimony, there was no reference to the word “monkey”. The witness indicated that he had not been shown a copy of the statement that he gave and was not given a chance to review the content.

Upon speaking to witnesses, the employer’s representatives determined that the comments were made, that Mr Smith denied them and did not seem to appreciate the gravity of his actions and they recommended termination.

During the interview with Mr Smith, the investigator was asking questions and typing essence responses into a computer as Mr Smith was speaking. Mr Smith was agitated and refused to answer the investigator’s questions if she kept typing. Eventually another investigator took over and asked the questions. The meeting ended with Mr Smith no longer answering questions or making eye contact.

A few lessons to be learned here. First, it is solid practice to have a witness review the statement generated from a formal interview. Not only does this provide a much clearer version of the evidence, it also provides an agreed upon document that can be tendered as evidence should a case be appealed to another jurisdiction, which it was here. Second, it seems the investigators may have shied away from using the offensive terms that were spoken in their notes. While this may not be the case, it brings to mind the tendencies we can all have, to “soften” or be overly general with respect to offensive evidence. Generally, if a term is used and will form the basis of a decision on employment status, it is better to include the exact phrasing rather than place your own “lens” in the way. In this case, the lack of inclusion of the phrase (although the witnesses recall stating it) is used by the Union counsel to attempt to overturn the employers decision at Arbitration. Third, the issue of typing while trying to conduct an interview and the effect of the investigator upon a person being interviewed. Quite simply, in my opinion, the most important thought process for a successful investigator is not “how am I going to take notes” and is more along the lines of “how is my process working (or not) for this particular witness, at this time and is there any way I can change what I am doing to help with the process”. The argument that a person being interviewed is being “uncooperative” or “disrespectful” happens all too often. The core of our practice and teaching is learning to overcome these manners of thinking and investigating in order to present a solid case finding, backed by the evidence, which is not influenced by bias or pre-conceived notions, and that can stand up to third party scrutiny. There are many working parts.

In the end, the arguments from the Union counsel were not quite enough, in a majority decision, the Arbitration panel upheld the employer’s decision.

While I agree with the ultimate disposition of this case, it strikes me that several of the hurdles the employer counsel had to navigate could have been mitigated with a more thorough process from the beginning. There’s just no telling which cases will go to appeal, so our motto is “treat each case as if it might”.

Not The Sharpest Tool in The Shed

Sadly, another example of racial comments in the workplace

Mr Sharp was employed as a teacher and a Vice-Principal at an Elementary school. He was suspended for ten working days without pay, his position as Vice-Principal was revoked, he was directed to participate in sensitivity training, and he was reassigned to a teaching position at a different school. The discipline was assessed due to a number of inappropriate racial comments he made, and his prior discipline for inappropriate comments was taken into account. Mr Sharp did not attend the Board meeting set to review the discipline but later grieved the discipline and a hearing was held.

At the time of the investigation of the comments by the employer, Mr Sharp did not provide any explanation or response to the allegations. The majority of the allegations centered around racial comments he made with reference to a African-Nova Scotian teacher (Ms Neil). The letter of discipline given to Mr Sharp detailed a number of allegations. Mr Sharp was reported to have said “would you like light brown construction paper, dark brown, or black like you” in response to Ms Neil’s request for some supplies. He also made the comment that he thought Ms Neil would like the colour the gym had been painted, “because it’s black like you.” About a month later Mr Sharp was reported to have mimicked an ape or monkey while scratching himself on a doorway, smirking and looking directly at Ms Neil. That same month, Mr Sharp was said to have walked by Ms Neil’s door repeatedly while whistling the tune to a song Titled “Brown girl in the ring”. Mr Sharp was said to have brought a vial of dark liquid to the staff room and commented that the liquid was black, like Ms Neil in front of a number of other teachers.

Through the investigation process, additional information came to light regarding Mr Sharp. It was reported that Mr Sharp paged Ms Moore (a teacher) to the office and when she arrived and asked “did you want me”, he replied, “Oh yes, badly”. Ms Moore took the comment to have a sexual connotation. It was reported that he made other inappropriate comments to Ms Moore about her relationship with her husband.

Ms Neil

Ms Neil testified to the specifics of the allegations against Mr Sharp. She testified that the comments upset her and stated she felt degraded and could not understand why someone would make such comments. Ms Neil testified that there were a number of peers present when Mr Sharp made the comment about the vial of liquid and described their reactions as “everyone just hung their heads.” She testified that she was unsure what to do with the situation because she felt she would not get support from the staff. She felt that some of the staff members were shunning her following the incident. She testified that when she stayed for lunch at school, no one other than two teachers would sit next to her.

Board Hearing

The Board met per policy for a discipline of this nature to consider whether it was justified. Mr Sharp had the right to attend or to have a representative attend. He chose not to attend. A member of the Board knew that Mr Sharp intended to submit a letter and a call was placed to Mr Sharp. The letter was brought into the meeting.

The letter appeared “hastily prepared” and was unsigned. Several Board members did not even want to consider the letter. They felt that Mr Sharp had taken “absolutely no responsibility” for any of the allegations. In the letter as an example, Mr Sharpstated “…if I was whistling that particular tune there was no intent to make (Ms Neil) feel uncomfortable.”

After much discussion it was decided unanimously that Mr Sharp would be suspended without pay until the end of the school year which was approximately 3 months.The Board felt that 10days was a slap on the wrist and that the behaviours and previous discipline warranted a greater sanction.

Appeal and Defense

Mr Sharp testified and attempted to refute some of the allegations against him at the hearing. He said that he had a good relationship with Ms Neil and said they had spoken of personal matters.

Mr Sharp testified that he could not recall making the comments related to the colour of construction paper. He denied making the comment about the colour of the gym although he further stated, “such a comment could easily be misconstrued.” Mr Sharp said that someone told him the vial of liquid was likely hash oil and when he asked why they said that, the response was “because it is black.” He testified that he replied, “(Ms Neil) is black but we don’t call her hash oil.” He testified that he did scratch his back on doorways, but denied there being any mimi cry of a monkey.Mr Sharp testified that he probably did whistle the song but denied that it was racially motivated.

Mr Sharp testified that the response to Ms Moore of “oh yes, badly” held no sexual connotation but was reference to wanting to speak to that teacher badly.

Mr Sharp stated that he had no idea that his lack of attendance at the Board meeting would be held against him. He stated he thought there was an agreement between the Union and Management regarding the discipline and said he was devastated when the suspension was significantly increased by the Board who had not even talked to him.

Award

The Arbitrator considered the authorities provided by counsel and additionally considered a case heard by the Supreme Court of Canada with respect to the definition and impact of sexual harassment, “…which in many respects can be considered analogous to racial harassment.”

The Arbitrator turned first to the comments made to Ms Moore. She noted that Mr Sharp did not deny the comments but provided different context. She found “In any event, both comments were insensitive, inappropriate, too familiar and un-welcome. I am satisfied that they justify some discipline.” The Arbitrator stated she would set the discipline for the comments at minor in the absence of other actions.

The Arbitrator turned to the incidents involving Ms Neil. After considering the specifics of each incident the Arbitrator noted the following: “It is clear in the law of discrimination that a perpetrator need not have discriminatory intent,if the result of the action or conduct is itself discriminatory….such conduct cannot be excused on the basis that no harm was intended.”

Mr Sharp was found guilty of misconduct.

The Arbitrator turned next to the question of discipline. She concluded that the Board’s response was excessive. The Arbitrator addressed the issue of the un-signed letter that the Board found to be indication that Mr Sharp was not taking the issue seriously. She accepted Mr Sharp’s evidence that he had problems with his computer and was working on editing the letter with the Union who then sent the letter to the Board. That explained why the letter was unsigned. Mr Sharp had also notified the Board prior to the meeting that he would not be in attendance.

The Arbitrator reinstated the discipline that was originally imposed.

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Dylan Hill

March 9, 2016