Could Kyrie and Kanye be fired for their anti-Semitic comments in Canada?

By Howard Levitt

The test is whether an employer can establish that genuine harm has or is likely to result to the company brand

Kanye West and now Kyrie Irving — two American celebrities — find themselves embroiled in anti-Semitism scandals.

History’s most recurrent racism is rearing its head when some thought it to be a thing of the medieval or, at least, mid-last-century past. My parents recalled Sunnyside beach and other Toronto areas having signs bearing, “No dogs or Jews allowed.” Is it coming back? After all, based on population size, Jews are still much more likely to be the target of hate crimes in Canada than Aboriginals, Blacks and Muslims, Statistics Canada data suggests. And, as evidenced by public incidents of anti-Semitism amongst such role models as West and Irving, anti-Semitism is increasing again. And it comes from both the right and the left, which tends to sanitize it as anti-Zionism.

But this is, after all, an employment column so let’s delve in. What if West or Irving were Canadian employees. Could they be fired for cause?

Could any employee of a Canadian company be fired for being a racist? Obviously workplace racism of any kind is a violation of the Human Rights Code and presumptively cause for discharge. But what if, as with Irving and West, they kept their views out of the workplace?

There is obviously a distinction between occurrences at work and private mutterings that did not see the light of day, such as a private conversation that the employer somehow learns of secondhand. Such incidents will seldom be cause for dismissal. But what if an employee’s racism, or, for that matter, any conduct potentially damaging to the employer’s “brand,” is more public?

In one related decision, a Canadian Pacific Railway Ltd. conductor was dismissed because CP considered her racy Instagram pictures violated the company’s “code of ethics and its internet and email policy.” She grieved through her union and was found to be improperly fired for cause with the labour arbitrator concluding that a short suspension would suffice. However, the arbitrator did not return her to her job because her sexualized pictures and her mentioning a CP investigating officer by name “(spoke) volumes regarding both her lack of respect for the company and her unsuitability to return to the company.”

In an Ontario Superior Court Case, a Linamar Corp. employee was found to be properly dismissed with cause after he was criminally charged (but not convicted) for downloading child porn in the privacy of his own home, because the publicity of such a charge would be very damaging to Linamar. The court noted that Linamar had built up a strong public image through its extensive work promoting children’s charities and the association of the employee to Linamar through his criminal case would be particularly damaging to it.

More than ever, companies are pronouncing mission statements, whether it be a formal diversity, equity and inclusion initiative or simply a declaration supporting a diverse workforce or upholding the tenets and principles of human rights.

Just as employers who act inconsistently with such statements in their treatment of their employees are more likely to attract punitive damages in resultant lawsuits, employees of such employers can more readily be dismissed for cause if they act inconsistently with their companies’ espoused values.

In addition to conduct more readily being cause for discharge if it runs afoul of companies’ espoused values, racist pronouncements are also contrary to Canadian public policy and statutes such as human rights legislation. Courts will view the impact on the company’s brand, their deviation from public policy and from legislation in finding conduct to be cause for discharge without severance.

Cause for discharge, according to our highest court, is always contextual. What might be cause to fire an employee in a company in one industry might well not be in another with different expectations and mores. Within the same company, what might be cause for a janitor or administrator might not be for an executive. The reverse is true as well.

The underlying issue is whether the conduct, from a particular employee, presents a real danger to the company’s reputation or image or its efforts to create one.

Obviously, executives can more easily be dismissed for ethical violations or for conduct more likely to put the employer into disrepute. That is because the company is more associated with its executives than with more junior employees.

Where does this lead? Does it mean that any outside conduct inconsistent with that company’s politics or image is cause for discharge? Or that any expressed view inconsistent with the company’s politics or value system leads to termination without cause? And that, for example, employees who openly debate that a company’s DEI platform has gone too far or disagrees openly with its affirmative action program has committed cause for their own discharge?

Some free speech and differences of opinion are permissible legally (although open public debate opposing a company’s direction may not be) but generally, the test is whether an employer can establish that genuine harm has or is likely to result to the company brand and that the conduct is objectively condemnatory before a court will find cause for discharge to exist.

Cleary Kyrie and Kanye’s statements were sufficiently hateful and they, sufficiently prominent, that they could have been quickly dispatched without recourse if they had been employed here. No Canadian company would want, or should have to, be associated, with either of them.