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.
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.
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 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 conducts 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.