The spotlight on racial equity and justice has intensified, prompting necessary conversations about systemic racism in various spheres, including in the workplace. Employees are increasingly speaking out about their experiences with workplace racism, shedding light on discriminatory practices and the pervasive impact on individuals and organizational culture.

This blog will explore the obligations of employers to respond effectively to allegations of workplace racism, emphasizing the importance of listening to employees and implementing anti-racist policies and practices in light of a recent decision from the Ontario Superior Court of Justice.

Employee Claims Lay Off Stemmed From Workplace Racism

In the case of Williams v. Vac Developments Limited, the plaintiff employee is a qualified Aerospace Sheet Metal Mechanic who was employed by the defendant from January 2018 to June 2021. The Ontario company specialized in built-to-print sheet metal and machining products for the aerospace and defence industries.

The employee was laid off from his job due to COVID-19 related business slowdown. Specifically, the employee claimed that he was laid off “because he demanded that the police be called to respond to a series of escalating, racially motivated threats against his life.” In the week following the lay off, the employee contacted CTV News and expressed his concerns regarding the company’s failure to respond to workplace racism appropriately.

Employee Commences Wrongful Dismissal Claim; Employer Counterclaims

Two months after the lay off, the employee commenced legal action against the employer seeking pay in lieu of notice, damages of $140,000 resulting from wrongful dismissal, and an Order that the company retain an external workplace investigator to review incidents of anti-Black racism.

The employer defended the action and counterclaimed against the employee for $1,500,000 due to “injury to their reputation, loss of customers and business, defamation, injurious falsehood, and unlawful interference with its economic interests.”

Employee Not Satisfied With Steps Taken By Employer To Address Racism Incidents

The employee describes incidents that occurred in the lead up to his lay off, including workplace racism, death threats, the sabotage of machines he worked on, and anti-Black graffiti. On the other hand, the company asserted that there were only two isolated events that occurred, but acknowledged that they were “reprehensible and unacceptable.” The company claimed they took immediate steps to address both incidents and despite requests for information, no employees came forward. The company also called group meetings in which supervisors were instructed to tell employees that racism is not tolerated.

However, the employee was not satisfied with these steps and did not understand why police had not been called or why the “graffiti” had been removed without an opportunity for the police to investigate. The employee indicated that he felt unsafe and targeted at work.

Employee Brings Anti-SLAPP Motion

The employee brought a motion under section 137.1(3) of the Courts of Justice Act, which is also referred to as an anti-SLAPP motion. These are intended to “discourage the use of strategic litigation that has the effect of unduly limiting expression on matters of public interest.” In this case, the Court had to determine whether the employer’s action was an attempt to stifle the employee’s freedom to speak out on workplace racism, which is a matter of public interest.

There are three stages that such a motion will be analyzed under, including the threshold expression hurdle, the merits hurdle and the public interest hurdle. The parties agreed that the threshold expression hurdle had been met, thus, it was up to the Court to determine whether the final two stages of the test had been met.

Company’s Failure to Comment on News Article Relevant to Mitigation of Reputational Damage

After finding that there was a “clear nexus between the Counterclaim and the statements” made by the employee to the CTV News journalist, the Court addressed the third stage of the test, which required it to consider whether “the impugned words tend to lower the company’s reputation in the eyes of a reasonable person.”

The Court found that a “plain reading of the CTV Article shows it to be an investigative report on the issue of underreported anti-Black racism in the Canadian workplace using [the employee’s] recent experiences to ground the Article as a personal interest story.” In this case, the Court noted that the company’s failure to comment was relevant to the issue of mitigation for potential reputational damage and Justice McGee suspected that “there would have been minimal impact had the company offered a quick two-liner: it does not tolerate racism in any form, and the matter was under police investigation.”

Court Dismisses Employer’s Counterclaim; Public Interest Outweighs Potential Harm to Reputation

After considering the evidence, the Court found that the employer was unable to establish “some grounds to believe that its counterclaim has substantial merit” and the Court could not draw inferences of “likelihood of harm, its magnitude, and the relevant causal links.” Accordingly, the Court acknowledged that the counterclaim was “issued by a corporation whose management team chose not to respond to a story that it knew was about to be published, and in the succeeding two years has not suffered any loss of business.”

Ultimately, the Court concluded that the employer’s counterclaim was without merit and dismissed it accordingly, affirming that the public’s interest in protecting the employee’s expression regarding workplace racism outweighed the potential reputational harm to the employer.

Key Takeaways for Employers and Employees Regarding Workplace Discrimination

This important decision serves as a reminder to employees that there are legal protections available to them when raising concerns of racism and discrimination in the workplace. It also highlights the significance of anti-SLAPP legislation and its role in safeguarding matters of public importance and can shield employees who speak out against such injustices.

For employers, this decision emphasizes their obligation to cultivate a safe work environment for all employees that is free of harassment and discrimination. It also illustrates that an employer’s failure to take steps to address such issues can result in serious legal repercussions.

The Toronto Employment Lawyers at Grosman Gale Fletcher Hopkins LLP Advise Employees and Employers on Workplace Discrimination Matters

If you are an employee who believes your rights have been violated at work, or you are an employer seeking to defend a human rights claim, it is important to seek legal advice as soon as possible. The talented team of skilled labour and employment lawyers at Grosman Gale Fletcher Hopkins LLP in Toronto help employees and employers navigate the most complex and challenging workplace issues, including allegations of racism, terminations, and severance pay. To speak with a member of our team regarding your employment law concerns, contact us by phone at 416.364.9599 or contact us online.