Employer Response to Racial Slur Found Reasonable by Human Rights Tribunal

August 11, 2023

Previously printed in the LexisNexis Labour Notes Newsletter.

A recent BC human rights case demonstrates the importance of employers taking meaningful action in response to complaints of racial harassment.

In Raul Martinez Johnson v. Whitewater Concrete Ltd. and Matias Pacheco and Miguel Pacheco and Nicolas Pacheco (No. 2), 2022 BCHRT 129, the employer’s response to a complaint eliminated an award of lost wages, despite a finding of discrimination.

Mr. Martinez Johnson, a carpenter, accused Miguel Pacheco and his sons, Nicholas and Matias, of calling him racist names.  He said he reported the harassment, but the discrimination continued and he had no choice but to resign.

The Pachecos identify as Latino. They said they understood Mr. Martinez Johnson to also be Latino and were using terms commonly used among Spanish speakers. However, Mr. Martinez Johnson identifies as both Mayan and Black African.  He said he is not necessarily perceived as Latino, but is also of African ancestry. The Tribunal therefore disagreed with the Pachecos’ argument that as Latino people, they were all “in the same boat” and found Mr. Martinez Johnson’s identity and experience to be distinct.

The Tribunal upheld the allegation that a discriminatory racial slur was used by Nicholas on two occasions, and found that there was an adverse impact on Mr. Martinez Johnson. The respondents argued Mr. Martinez Johnson had not presented medical evidence of adverse impact, but the Tribunal found such evidence was unnecessary. The Tribunal found “Mr. Martinez Johnson [to be] an expert in his own experience”. It also found his experience was “consistent with a contextual understanding of such name-calling”.

After finding that Mr. Martinez Johnson had been subjected to discrimination, the Tribunal considered the employer’s response. The Tribunal found the allegations were reported to Whitewater two months before Mr. Martinez Johnson resigned.  Immediately after the allegations were reported, the employer held a meeting between Mr. Martinez Johnson and the Pachecos. The employer facilitated a discussion between all the parties, in which each side aired grievances; acknowledged the nature of their work and that long hours could lead to conflict; and confirmed they worked as a team. At the end of the meeting, everyone shook hands and apologized. The Tribunal found the employer viewed Mr. Martinez Johnson’s concerns in a serious light, and took steps to address them. This was a reasonable response to the conflict.

Two months later, Mr. Martinez Johnson made a second complaint. The employer decided to separate Mr. Martinez Johnson and the Pachecos. Mr. Martinez Johnson was offered work on a different project but said instead he was going to resign. Nonetheless, Whitewater launched a formal investigation. The superintendent took witness statements and wrote a report, which was entered as an exhibit before the Tribunal. The report found no discrimination but recommended all employees attend a follow-up meeting to review the bullying and harassment policy statement. Again, the Tribunal found this to be a reasonable employer response.

The Tribunal awarded $2,500 to Mr. Martinez Johnson for injury to his dignity, feelings and self-respect on account of the racial slurs he had endured. Nicholas and the employer were jointly and severally liable to pay that amount. Because the Tribunal found no action of the employer led to Mr. Martinez Johnson’s resignation, he was not awarded lost wages. He had been offered a safe work environment by Whitewater and steps had been taken to separate him from the Pachecos at work. In addition, the facilitated discussion and meeting and the investigation were reasonable responses to his complaints.  Further, Whitewater had a bullying and harassment policy that included a complaints procedure and a statement that violating the policy could lead to termination of employment.

This case outlines steps an employer can take to address complaints of discrimination: maintain a current bullying and harassment policy; provide a safe workplace for complainants by taking their complaints seriously; promptly investigate complaints of discrimination, even when a complainant has resigned; and implement regular training. The Tribunal noted that the recommendation for training confirmed to Whitewater employees that “discrimination would not be tolerated” in their workplace.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.