When Does Racism Amount to a Poisoned Workplace?

Does racism necessarily lead to a poisoned workplace?

At the end of last month, the Ontario Court of Appeal concluded in General Motors of Canada Limited v Yohann Johnson that while the former employee, Johnson, “genuinely believed that he had been the victim of racism in his workplace” and that his “perception of events unfortunately led to stress and mental anguish”, the evidence did not support Johnson’s claim of a work environment poisoned by racism or constructive dismissal. 

In a fairly rare move, the Court of Appeal overturned the trial decision because it disagreed with the trial judge’s factual conclusions, rather than any significant concern with the application of law. 

Facts

In that case, Johnson, a black man, was a production supervisor in the body shop at GM’s Oshawa assembly plant. Among his various duties, he was responsible for training group leaders in the body shop on a new system of policies and guidelines. 

One employee named Markov refused to train with Johnson. Based on a number of factors and statements by co-workers, Johnson claimed that Markov refused to train with Johnson because of race. The Court of Appeal accepted the evidence that Markov refused to train because of an insensitive remark Johnson had allegedly made to Markov a few years earlier.

The company conducted three different investigations, and each time had concluded that Markov’s refusal to train with Johnson was not motivated by race. Markov, in fact, had agreed to take the training with another supervisor who was of colour. 

What remained a significant challenge at trial was that Markov had unfortunately died before trial, so his credibility and his version of events could not be admitted or tested.

Medical Leave

Johnson eventually took a medical leave, asserting disability arising from discriminatory treatment due to racism in his workplace. He was absent from work for the next two years, after which he met with the company’s doctor, who concluded that Johnson was fit to return to work. 

The company offered Johnson two different positions, both of which were approximately a kilometre away from the assembly plant body shop, offered to adjust Johnson’s shifts and possibly his supervision. Johnson declined the offers, maintaining he was disabled from working in any GM plant, but provided no medical information to support the claim. Johnson remained concerned that he would run into certain employees, including Markov.

Two months later, the company wrote to Johnson , who had still not returned to work, to confirm the offered employment opportunities, and concluded that in the absence of any medical support for the continued absence, Johnson was resigning from the company.

Johnson’s Litigation

Johnson sued for damages for constructive dismissal and a poisoned workplace based on racism. The Trial Judge agreed with Johnson, and awarded him various damages. 

The Court of Appeal overturned the decision, concluding among other things that Johnson failed to establish systemic or institutional racist behaviour:

“I agree with GM’s submission that a single incident of this kind, with a single employee, over the course of an eight year working relationship cannot objectively ground a finding of a work environment poisoned by racism.” (paragraph 71)

The Court of Appeal made several conclusions in support of the company, including the following:

  • there was no evidentiary basis to support that Markov was racially motivated in his refusal to train with Johnson, or that Johnson was required to return to a poisoned work environment when the company offered him two different positions;
  • Johnson did not have the right to dictate where he would work or the employment role he would assume on his return to work;
  • an objective standard governs the determination whether a workplace is poisoned, by reason of racism or harassment, not just the subjective perception of the plaintiff; and
  • the company was “not obliged to immunize Johnson from any future contact with Markov or other body shop employees”, and the mere possibility of contact with the employees does not alone establish that such exposure would result in future discriminatory treatment of Johnson.

Take-Away for Employers

The onus of establishing a poisoned workplace is on the employee making the claim. It is not an easy hurdle to meet, and must be based in solid, objective evidence. 

The Court of Appeal was sympathetic to Johnson’s genuine belief that he had been the victim of racism in his workplace and that he had suffered personal anguish as a result, but it could not conclude that Johnson’s belief was sufficiently supported by objective evidence.

The critical step to all workplace human rights complaints is to ensure that all complaints are taken seriously, and that a well-trained person conduct an objective, detailed investigation and thoroughly explore the issues, interview witnesses and fully document the entire process. 

Because at the end of the day, it doesn’t really matter what we all perceive to be the facts – we have to prove them to obtain a legal remedy.

 

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Tips for Transitioning Back a Returning Employee

Well, I'm back in the office this week after a busy but wonderful maternity leave.  I was quite excited to get back at it.  As all parents who have taken a parental leave know, coming into the office is often a welcomed break from the chaos of little ones at home. 

Practicing law certainly has its stressful moments, but those nutty emotional breakdowns because my two year old wants to wear her flip flops instead of her running shoes (because they match her hair clip better) or because either kid (again) refuses the nutritious love-filled meal that I so carefully made for them can be a little much sometimes. 

Like all employees coming back from a leave, I was curious how things would go this first week.  I have kept touch with my colleagues and kept up with the law over the last 10 months, but it is nonetheless like walking into a new stage of the job. 

Based on my positive experience this past week, here are a few tips for employers to help the transition of employees re-entering the workplace after a leave:

  • Make a point of having a senior person (HR, supervisor, etc) stop by to welcome the employee back.  No matter how senior or secure the employee is, there is always that lingering worry whether there is still a place for them in the office.  One 5 minute visit from the boss can eliminate the air of uncertainty and help everyone hit the ground running.
  • If it was a paternity leave, ask about their kids.  It was their 24-hour a day job for a period of time, so it is likely something on their mind for the first couple of days.  It's important to acknowledge this exciting addition to their life.
  • Ensure the employee has the tools to do their job.  The IT manager contacted me last week before I started to make sure I was ready to go.  It was a great gesture and on Monday, I was able to hit the ground running with my computer, phone system, etc.
  • If there were any significant changes in the office, have someone update the employee.  In my case, my firm underwent some significant renovations and it was great to have a colleague tour me around so that I could find everyone again. 

More than anything, take off the kid gloves - this employee may be missing her or his kids, may still be a little sleep deprived from middle of the night feedings, but they have weathered the challenges and tough hours of childbirth and the long days of taking care of a new human being.  The required multi-tasking and non-stop schedule at home usually makes people more focused when they return to work.  Breaks and lunches get shorter so that we can get the work done to get home to our kids.  Employees are fundamentally the same person that they were beforehand.  If you gave your employee tough assignments and big responsibilities before the leave, then continue to do so now. 

Aside from the obvious human rights concerns should an employer do otherwise, employers should assume the employee is ready to go, is more capable then ever and has simply been enriched by their new life experiences during the leave. 

 

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Maternity Leave Realities

I haven't blogged since mid-September.  The spirit is willing, but the flesh is weak.  

I'm home in month 3 of a maternity leave with my second baby and simply haven't been able to get to a computer for a solid period of time.  As anyone who has been on a parental leave with a newborn knows, it is a wondrous, happy time - but it is no vacation.  

My eldest is 2 and was apparently an easy baby (something I didn't appreciate at the time!).  Then along came #2... I feel very fortunate to have two healthy, happy kids and am trying to appreciate every moment of this special time. My 3 month old, however, spent his first 2 months very grumpy about entering this world, and complained about it 24 hours a day, feeding relentlessly in protest.  He's finally become human and things are sorting itself out.  But it was one heck of a long, sleepless haul to get here.

For any employers out there who have an employee at home on a maternity leave, I can tell you that they are busy.  I don't know what we're busy doing, and I always have a hard time remembering what I all did when my spouse asks at the end of the day, but what I do remember is not having 5 minutes to myself to think. 

I look forward to getting back into the office to read documents that don't rhyme and that contain more than 1 syllable words, to problem solve more than whether to watch Yo Gabba Gabba or Cailiou on TV, to eat hot food and to put my years of training back into practice.  I know, however, that I'll be there before I know it and will miss these quiet moments with my baby sleeping on my lap in the middle of the day, "trapping" me in the recliner and forcing me to taking life a little slower. 

If only we could clone ourselves and somehow have both worlds.

 

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Maternity Leave Benefits Around the World

Three weeks ago, I had a baby.  He's my second child, was a very reasonable 6 lbs 12 ozs and happily zipped out with no fanfare or complications.  I am now at home with plenty of down time while I feed and wish I was sleeping, and while keeping watch over my 2 year old to make sure she doesn't poke the baby in the eye or hug him too hard. 

Maternity Leave In Other Countries

All this "free time" has made me rather grateful that I live in Canada - great health care system and a great maternity leave laws.  I work at a global law firm and out of curiousity, over the last few years have spoken with women at our offices in other countries about their maternity leaves.  In some of the Latin American countries, mat leave is 5 years - but that is because it is assumed you will not continue working while being a mom with a pre-schooler (likely a serious dent in the partnership track either way). 

On the other hand, in the US, 3 months with plenty of Blackberry action is the norm.  It certainly makes it much easier to stay on top of files and avoid the time-consuming transition memos before you go on leave, but going back after 3 months feels too quick for a Canadian-bred lawyer like me.

According to Wikipedia (I'm on a mat leave, so cut me some slack for the lazy research!), the length of mat leave and top ups vary greatly across the globe. The length of leaves ranges from 30 days at a 67% wage supplement in Tunesia to 16 months at about 82% of salary in Sweden.  By comparison, in Canada, we have a year at 55% of wages, more if you are in Quebec. 

Maternity Leave in Ontario

As an update for those who have not yet had kids, or who had kids a couple of decades ago, the Ontario Employment Standards Act entitles a pregnant employee to 17 weeks of Pregnancy Leave (sections 46-47) and another 35 weeks of Parental Leave (or 37 weeks if no Pregnancy Leave was taken) (sections 48-49). 

The federal Employment Insurance Act regime provides up to 15 weeks of EI Maternity Benefits and up to 35 weeks of Parental Benefits.  The Parental Benefits can be shared with your partner, allowing both parents to spend time at home. 

For those curious about the current EI benefit amounts, the basic benefit rate is 55% of your average insured earnings, up to a yearly maximum insurable amount of $43,200. This means you can receive a maximum payment of $457 per week.  After taxes, you'll get about $1,500.  Yes, this may be a dip in pay for some, but its better than $0, and for the vast majority of Canadians, it makes all the difference whether a parent can afford to stay home. 

Some workplaces offer a "top-up" on the EI benefit so that the employee on leave maintains a full or nearly full salary for a certain number of months of the leave.  While any earnings (such as severance packages or part-time wages) are clawed back dollar for dollar with other types of EI benefits, employees are entitled to keep any amounts paid during the maternity and parental leave, provided it does not exceed the employee's regular salary.

I often think I was born at the right time and place in history - as a woman, I could go to university; as the daughter of working class parents, I could afford a good education through student loans; as a female lawyer at the beginning of the 21st century, I work in a law firm with equal access to as interesting files as my male colleagues; and finally, as a Canadian, I can still have a family while trying to do the above. 

Of course, it's not all rosy, and there are still many hurdles for women to overcome (too many women feel they must leave high profile jobs as they enter parenthood, law firm partnership remains elusive to many women, and statistically, we still have many of the home front responsibilities while taking on increasingly demanding roles in the public sphere).  Perhaps it's my sleep deprived state of being a new parent, but I still conclude that we've come a long way and wouldn't trade my place with June Cleaver anytime soon.

 

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Employer Obligations During a Leave

This week, Christine Thomlinson wrote a great blog post on the (potential) come-back of Tiger Woods.  She draws a parallel between Tiger's return to golf and employees returning to work after a difficult period in their life, whether criminal, personal, or otherwise.  As she points out, there are a number of pro-active steps an employer can take to ease the transition.

I would suggest that Christine's comments also extend to other types of absences, such as a maternity or parental leave, a sick leave or workplace sabbatical.  When an employee has been absent from the workplace for a period of time - even if for very happy reasons such as becoming a new parent - the workplace will continue to chug along without the absent employee. 

What  are an employer's obligations and an employee's entitlements during an extended leave?  For American employers with a Canadian subsidiary, this area is often a completely bizarre area of Canadian employment law.

Part XIV of the Employment Standards Act (ESA) provides for the following types of statutory leaves:

  • Pregnancy Leave
  • Parental Leave
  • Family Medical Leave
  • Emergency Leave, and
  • Reservist Leave.

While an employer can offer other types of leaves (e.g. educational leave, etc), it is the above statutory leaves that come with specific legal entitlements. 

For example, when an employee finishes his or her statutory leave, the ESA requires the employer to "reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not."

The employer must also reinstate the employee at a wage rate that is equal to the greater of (a) the rate the employee most recently earned with the employer or (b) the rate the employee would be earning had she or he worked throughout the leave.

A further example involves benefit plans.  An employee on a statutory leave is entitled to continue to participate in the following benefit plans:  pension plans, life insurance plans, accidental death plans, extended health plans, and dental plans.  Again, while an employer can chose to continue all benefits in which the employee is enrolled prior to the leave, it is only the statutory enumerated benefit plans that must be continued during the leave. 

A caveat to this is if the benefit premiums are normally employee paid - in this case, the employee can give the employer written notice that he or she does not intend to pay the employee's contributions, in which case, the employer can cease the benefits for the duration of the leave.

In general, any entitlement based on length of employment must continue to accrue.  An entitlement based on hours worked, however, will generally amount to $0, since the employee will have worked 0 hours during the leave.

While the majority of leaves seem to go smoothly, there are always both legal, human resource and business issues to consider. 

The above outlines some of the legal issues.  Have you run across unique human resource or business issues in your workplace that were difficult to reconcile with the legal obligations? 

 

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