Employer’s Prompt and Direct Response to Racially Charged Comments Avoids Human Rights Violation

Overview

The recent decision from the Human Rights Tribunal of Alberta (the “Tribunal”) in Tolentino v His Majesty the King in right of Alberta (Alberta Justice and Solicitor General), 2023 AHRC 112, provides important direction for employers on the steps they can take to avoid or defend against allegations of discrimination in the workplace.

In this matter, Charlene Tolentino (the “Complainant”), accused her employer, the Office of the Public Guardian and Trustee (“OPGT”), of subjecting her to a poisoned workplace when she was exposed to racialized comments made by a co-worker. The Complainant made a complaint to the Alberta Human Rights Commission alleging discrimination on the grounds of race, colour, ancestry, and place of origin, in violation of section 7 of the Alberta Human Rights Act. 

Background

At issue in the complaint were comments made by an OPGT staff member, Tracy Johnson (“Johnson”), prior to the commencement of a mandatory staff video meeting. During informal conversation preceding the meeting, Johnson made negative comments respecting rap music and about “Black music” and/or “Black music lyrics” and “Black men”. While making these comments, Johnson commented that in the music there is the use of the N-word (spoken in full by Johnson), and Johnson further stated, among other things, that she asks her children, who are bi-racial, to turn off their rap music whenever she hears her kids playing it. The Complainant and a co-worker objected to Johnson’s comments, and the discussion eventually ceased upon the attendance and direction of an OPGT Manager (the “Incident”).

At the time, the Complainant was the only employee of the OPGT who identified as “Black.”

The Employer’s Response

In rendering its decision, the Tribunal noted the immediate steps taken by the OPGT, which included:
  • Upon attendance at the meeting, the OPGT Manager immediately stopped the pre-meeting conversation and redirected staff to the meeting agenda.
  • At the conclusion of the meeting, the OPGT Manager admonished staff that she did not condone disrespectful and inappropriate meeting conversations. She further stated that race and ethnicity are not matters to be taken lightly.
  • The Complainant left the meeting before its conclusion and was offered the rest of the day off.
  • Following the meeting, the OPGT Manager reached out to the Complainant to hear from her, apologize, and assure her that the language used in the pre-meeting discussion would not be tolerated.
The Tribunal also noted that the OPGT had policies in place which addressed workplace behaviour, discrimination, and harassment, and that the employer took a number of additional steps to address the Incident, including, among other things:
  • Commencing two investigations, which included interviewing all employees involved in the Incident;
  • Emailing staff acknowledging the impact of the Incident;
  • Notifying staff that formal steps to provide opportunities for diversity training were being pursued;
  • Contacting Human Resources for formal opportunities regarding diversity training;
  • Initiating mandatory Respectful Workplace training for all staff and issuing Unconscious Bias training;
  • Making a counsellor available to speak with staff on an individual basis; and
  • Accommodating the Complainant by ensuring she did not have to work with or in proximity to Johnson, permitting her to work from home, granting her additional office days on request, assigning her to work with people she perceived as supporters, extending her counselling benefits beyond maximum thresholds, and granting her request for a change in supervisor. 
Tribunal Findings

The Tribunal dismissed the complaint and made the following two related findings. 

First, while emphasizing that use of the N-word was unacceptable, racially charged, and a breach of the OPGT’s Respectful Workplace Policy, the Tribunal found that but for the immediate and continuous effort by the OPGT to address the Incident, the Complainant could have easily been exposed to a poisoned work environment. However, given the context, the single incident without more did not amount to a poisoned workplace environment.

Second, the OPGT did not discriminate against the Complainant by subjecting her to a poisoned workplace as a condition of her employment. Although employers are responsible for their employees, they are not able to prevent every indiscretion, or every comment made by an employee. What they are responsible for and what defines an employer, and their potential liability, is their reaction to impugned events. In this regard, the Tribunal stated as follows:

[67]   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. … 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. [citation omitted] [emphasis added]. 

Further, the Tribunal emphasized that employers have a 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.”

In finding that the OPGT met its duty (and thereby dismissing the Complaint), the Tribunal highlighted the fact that the OPGT did not ignore the situation, but rather provided “an immediate and multi-faceted response to address the clearly objectionable comments.”

The Tribunal held that the OPGT’s actions demonstrated that it “[could] objectively be seen to be doing all it can to make change and correct the effects of the incident created by one employee” and “did not condone or create a poisoned work environment and, in fact, did everything in its power to neutralize the terrible comments that were made in relation to rap music before the start of a meeting.”

Key Takeaways

This decision is instructive insofar as directing employers to take prompt and comprehensive action in response to incidents of racial and other potentially discriminatory actions that arise in the workplace. This decision also points to the value of having existing policies and training programs in place that mitigate against and address discrimination and disrespectful workplace activities. 

This decision also provides the following key takeaways for employers: 

1. A single instance of discrimination by an employee to another may not constitute a poisoned work environment, if an employer takes immediate and appropriate steps to address the discriminatory incident. 

2. Employers may be responsible for employees’ behaviour, but it is recognized that they cannot prevent every indiscretion, or discriminatory comment. What an employer can control, and what affects their potential liability, is their reaction to a discriminatory incident. 

For more information on this decision or workplace law or policies, please contact the authors, Daniel Weber and Mary Spelliscy.