A recent decision of the Alberta Human Rights Tribunal offers a clear analysis of the duty of the employer to maintain a workplace free of discrimination. In this instance, the actions of the employer were immediate and effective and avoided an adverse finding against it by the Tribunal. 1
The case was initiated due to certain conduct of staff member of the Office of the Public Guardian and Trustee. The comments made by the employee preceded a mandatory staff video meeting. The employee, Johnson, made comments which were adverse to rap music, “Black music”, “Black men” and “Black music lyrics”. She also mentioned that such lyrics often use the “N word”, using the offensive term and that she requested her biracial children to turn off such music.
This resulted in objections being made by the complainant, the sole Black person employed by OPGT, and a colleague.
A manager intervened and this discussion ceased.
The employer took the following actions:
- The immediate conversation was ended and the staff followed the previously determined agenda;
- The manager instructed those present that disrespectful conduct was not to be tolerated and such adverse conduct dealing with matters as race and ethnicity were serious issues;
- The complainant was allowed to take the rest of the day off work;
- The manager apologized to the complainant, and assured her such language was not to be an accepted standard;
- Two investigations of this issue were commenced;
- An email was sent to all staff advising of this issue and noting its impact on staff;
- The staff was advised of formal steps which were available for diversity training;
- The employer began workplace training for all staff;
- A counselor was made available for all staff on an one on one basis;
- The complainant was allowed not to work in proximity to or with the speaker, Johnson. She was also allowed to work remotely, additional time off was allowed. She was also assigned to work with people who she viewed as supportive. In addition, additional counseling benefits was provided and her request for a change in supervisor was allowed.
In short, the employer acted promptly, decisively and took all imaginable steps to address the issue and provide consolation to the person offended.
The Decision
The complainant had alleged the conduct in question led to a poisoned work environment.
To this issue, the Tribunal found that, while the evidence did show an unacceptable and racially flawed circumstance, such an event was singular, given the employer’s remedial actions. Had the employer not taken such immediate and decisive action, the allegations may well have succeeded.
The Tribunal did note, that while the employer is overall responsible for workplace conduct, it cannot marshal every possible statement or action of all of its employees. The employer, however, is responsible for its reaction to such an event as the issue in controversy:
Employers must be responsible for their employees, but they are also not able to prevent every indiscretion, or every comment made by an employee. What defines an employer, and their potential liability, is their reaction to the comment. As noted previously:
Except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.
The Tribunal applauded the employer’s response to the situation, one which was in compliance with its duty to “"take prompt and effectual action where there is an incident of racial harassment, and the employer is obliged to take reasonable steps to alleviate the distress in the work environment to reassure those concerned that it is committed to a workplace free of racial discrimination."
The complaint for these reasons was dismissed.
This case provides a text book example of the standard of conduct expected of an employer in this context.