Labour board rules against LRT construction firm
Company showed unconscious bias when firing Black worker three years ago, ruling finds
The company building the Eglinton Crosstown LRT discriminated against a Black construction worker when it fired him three years ago, the Ontario Labour Relations Board has found.
Construction professionals and advocates say the decision, which was based on a finding of unconscious bias on the part of the company, exposes a wider problem of racism within the industry, and highlights the importance of community benefits programs that seek to ensure more racialized workers get jobs on public infrastructure projects like new LRTs.
Stephen Callender, president of the Afro Canadian Contractors Association, said the board’s conclusion that the company discriminated against the worker as a result of unconscious bias, rather than any deliberate act of racism, was particularly significant.
“I won’t call it a landmark, but it’s an important case,” said Callender, whose group aims to increase opportunities for Black- owned contractors. He said that for years Black workers have faced subtle forms of racism on construction sites but kept silent for fear of damaging their careers.
“The only way we get rid of this is by talking about it and getting it out in the open,” he said.
In the Feb. 23 decision, the labour board upheld a grievance filed by Laborers’ International Union of North America ( LiUNA) Local 183 on behalf of Alexis Williams, who was employed on the LRT by Crosslinx Transit Solutions ( CTS) as a labourer- journeyman between 2017 and 2019.
Board vice- chair Patrick Kelly found CTS hadn’t established a sufficient basis to fire Williams, and his termination violated the company’s collective agreement and the Ontario Human Rights Code because it “was tainted by discrimination based on race and colour.”
In a statement, CTS spokesperson Kristin Jenkins said she couldn’t comment on details of the case because the company has filed a request asking the board to reconsider. But she said CTS was “disappointed” in the ruling.
“Crosslinx is strongly committed to our workplace diversity and inclusion policies. The decision clearly states there was no evidence of any intentional discriminatory conduct,” Jenkins wrote.
Liuna Local 183 declined to answer the Star’s questions about the grievance because the two sides are still discussing a remedy for Williams. Reached through the union, Williams also declined to comment.
CTS fired Williams with cause in August 2019, after he was involved in a pair of verbal disputes with co- workers at the Crosstown’s Forest Hill station. The company accused him of “threatening” behaviour that caused colleagues and supervisors “to be very concerned about their and other employees’ safety and well- being.”
But Kelly wrote in his decision that the company presented no evidence Williams caused anybody to fear for their safety. He also found CTS unfairly used Williams’s previous claims about experiencing racism on the job as part of its rationale for firing him, and that the company called those allegations unfounded despite doing little to investigate them. By contrast, after the disputes Williams had with his coworkers, CTS “investigated and fully documented” his actions.
The adjudicator said testimony about “the well accepted phenomenon of implicit bias” provided by Kerry Kawakami, a psychology professor at York University and an expert witness for the union, provided possible explanations for the circumstances around the firing.
Implicit bias is a term that describes a person’s unconscious belief the members of an “outgroup” are fundamentally different than members of an “ingroup,” and in the case of racial bias, a belief members of another race have traits different from the person’s own.
Kawakami cited research that showed many North Americans have unconscious biases that unfairly associate Black men with aggressiveness and hostility. Those biases would make it more likely that someone would perceive a Black man as threatening compared to a person of another race.
Because the biases aren’t conscious, they could also make it less likely for someone who holds them to take seriously a Black man’s claims they had discriminated against him. The person accused of bias may dismiss the allegation because they consciously believe themselves to be acting fairly, in accordance with their explicit values.
The adjudicator wrote there was no evidence anyone at CTS “intentionally singled out Mr. Williams because of his race,” or to support the employee’s view that his workplace was a hotbed of racist attitudes. But that “does not necessarily mean that he was not subjected to a more nuanced form of discrimination.”
CTS argued Kawakami’s testimony shouldn’t be relied on to make findings of fact about whether Williams had been discriminated against, and described his allegations of racism as “reckless, unsubstantiated and offensive,” according to the adjudicator.
The board determined there was no evidence to support two other grievances in which Williams claimed he had been temporarily laid off by CTS for discriminatory reasons, and dismissed them.
Experts in labour law say the idea that discrimination can be caused by unconscious bias has been an accepted legal fact for years, but it has become more mainstream after the 2020 murder of George Floyd.
“It’s not a controversial thing any more,” said Kumail Karimjee, a Torontobased employment lawyer.
Alison Braley- Rattai, an assistant professor of labour studies at Brock University, said the legal acceptance of implicit bias doesn’t mean all claims of unconscious racism will be assumed to be true, and each case has its own specific facts that decision- makers have to weigh.
“But given how unconscious bias works, the absence of a credible and rational alternative explanation for a given action will give claims of unconscious bias heightened importance,” she said.
Toronto’s construction industry has recently been forced to confront racism within it ranks after more than a half- dozen nooses, symbols associated with the lynching of Black Americans, were found at job sites across the city in 2020 and 2021. Two were at Crosstown sites.
Rosemarie Powell, executive director of the Toronto Community Benefits Network, said the industry “is simply not equipped to deal with anti- Black racism” and has yet to develop policies to identify and address the problem.
Her organization advocates for transit lines and other government funded infrastructure projects to include community benefits agreements that set hiring targets for Black and Indigenous workers, women and other groups historically left out of the construction industry.
CTS and the previous Ontario Liberal government signed a community benefits agreement for the Crosstown in 2016, and the deal was meant to serve as a template for future transit projects. But the program looked to be in jeopardy earlier this year when the Ontario PC government left hiring targets out of construction contracts for its subway program. Under pressure from Powell’s group and the opposition, the province committed to incorporating the targets on future lines.
Powell said Crosslinx is one of the better employers in the industry and takes issues of racism seriously. In 2021, her group gave the company an award for its diversity efforts.
But she said decisions like the Crosstown discrimination case underscore the need for strong community benefits agreements, and should “focus the industry’s attention” on doing more “to root out systemic racism.”
The only way we get rid of ( subtle forms of racism) is by talking about it and getting it out in the open. STEPHEN CALLENDER, PRESIDENT OF THE AFRO CANADIAN CONTRACTORS ASSOCIATION