Followers of U.S. politics may be paying attention to the ongoing efforts on the part of Florida’s governor to crack down on what he and other conservative politicians view as the “liberal bias” in universities and colleges. These efforts have included a law aimed at limiting the discussion of racism and privilege in schools and workplaces,¹ the appointment of conservative trustees to a college’s board of trustees,² and a plan to dismantle EDI programs in post-secondary institutions.³

Although schools and post-secondary institutions in Canada have not faced this sort of sustained campaign on the part of elected officials against EDI initiatives, we are not immune to broader “anti-woke” sentiments or the backlash against EDI. Educational institutions are particularly vulnerable in this regard, since, for many institutions, their public status opens them up to a level of public scrutiny that doesn’t attach to private organizations.

A recent arbitral decision, Sheridan College v. OPSEU/SEFPO, Local 245, 2022 CanLII 118574 (ON LA) (“Sheridan”) provides insights for investigators who face these issues.

The Case

The decision in Sheridan arose out of a grievance for wrongful termination of employment, brought by a Student-Athlete Advisor at Sheridan College.

In 2020, the College rolled out new mandatory EDI training for its employees. The grievor completed the training, but felt that some of the content, such as the discussion of white privilege, was objectionable and contrary to the Ontario Human Rights Code. Feeling as if he could not raise his concerns internally, the grievor decided to contact the right-wing media outlet Rebel News and ultimately provided them with excerpts of the College’s training materials. The news outlet subsequently produced a video criticizing the training. The video also criticized the College’s Vice President of Inclusive Communities, who, along with the Vice President of Human Resources, had announced the rollout of the training.

The College identified the grievor as the potential source of the leak, and in a meeting with College officials, the grievor admitted to the conduct. He explained that he had heard that the backlash that occurred when the contents of EDI training at Coca Cola had leaked to the public had led to the cancellation of this training, and that he had hoped the same thing would happen at the College after he leaked the training materials.

The College ultimately terminated the grievor’s employment as a result of his actions.

In her decision, the arbitrator found that the College had just cause to discipline the grievor and upheld his termination of employment.

Specifically, the arbitrator held that, in leaking the training materials to Rebel News, the grievor had breached his duty of fidelity and loyalty, one of the fundamental elements of the employment relationship.

In her decision, the arbitrator examined the tension between an employee’s duty of fidelity and loyalty to their employer and the right of an employee to criticize their employer, particularly in the context of a public institution like a college.

In particular, citing previous arbitral decisions, the arbitrator in Sheridan set out the relevant considerations in balancing fidelity and loyalty with public criticism. These include “the content of the criticism, how confidential or sensitive was the information, the manner in which the criticism was made public, whether the statements were true or false, the extent to which the employer’s reputation was damaged or jeopardized, the impact of the criticism on the employer’s ability to conduct its business, [and] the interest of the public in having the information made public.” Additionally, “[b]efore making public allegations of misconduct, the employee is under an obligation to investigate and verify the concerns as far as possible. The employee is also obliged to take every reasonable opportunity to correct the concerns within the organization before taking them public.”⁴

Takeaways for Investigators

Sheridan provides helpful guidance to investigators who are dealing with complaints that include allegations related to “anti-woke” sentiments or EDI backlash.

In particular, it illustrates the important distinction between the opinion that someone has and how they choose to express that opinion. The issue in this case was not that the Student-Athlete Advisor objected to the College’s training. Rather, the issue was how he chose to express his opinion: by leaking training materials to a news outlet.

When investigating allegations that involve these sorts of deeply held beliefs, and, especially, the clash between different sets of beliefs, it’s easy to get distracted by the nature of the belief at issue. But, investigators should instead focus on how the parties expressed their beliefs. Below are some questions to consider when analyzing this type of issue:

• • Was the party’s language, tone, and demeanour respectful?
  • Did the party listen respectfully to the opposing point of view?
  • Did the party express their concern or objection in the appropriate forum?
  • Did the party express their opinion privately or publicly?
  • If the organization ultimately made a decision that was contrary to the party’s opinion, how did the party react?

¹Becky Sullivan, “With a nod to ‘1984,’ a federal judge blocks Florida’s anti-‘woke’ law in colleges” (November 18, 2022), online: NPR <https://www.npr.org/2022/11/18/1137836712/college-university-florida-woke-desantis-1984>.

²Joseph Contreras, “DeSantis ramps up ‘war on woke’ with new attacks on Florida higher education” (February 5, 2023), online: The Guardian <https://www.theguardian.com/us-news/2023/feb/05/ron-desantis-war-on-woke-florida-higher-education-new-college>.

³Joseph Kennedy and Melissa Perez-Carrilo, “DeSantis pushes Florida universities to the right, targeting tenure, diversity initiatives” (January 31, 2023), online: USA Today <https://www.usatoday.com/story/news/politics/2023/01/31/desantis-targets-florida-college-university-diversity-programs-tenure/69858501007/>.

⁴ Sheridan College v. OPSEU/SEFPO, Local 245, 2022 CanLII 118574 (ON LA), citing Camuson College v. C.U.P.E., Local 2081, 1999 CarswellBC 4507 (Germaine).

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