Written on behalf of Peter McSherry
Not everyone loves going to their place of work every day. Maybe the commute is too long, or the air conditioner is always set extremely high, requiring bulky sweaters in July. But what happens when the source of the discomfort comes from negative comments, mistreatment or even harassment from coworkers?
What is a person’s recourse when someone at work is making their workspace a toxic environment through discriminatory comments, jokes, verbal abuse or other non-physical forms of harassment? What are the responsibilities of an employer to prevent and react to such situations? Lastly, what consequences might a person face if they participate in the harassment of a colleague?
What is ‘Harassment in the Workplace’ Under the Law?
The Ontario Human Rights Code (the “Code“) protects all employees from harassment on the job. The term ’employee’ is not defined in the Code but has been interpreted by courts and tribunals broadly to include temporary workers, volunteers, contract staff, and any person who can be seen to have a ‘work-like’ relationship with an employer. The Occupational Health and Safety Act (the “Act“) further sets out employer obligations with respect to harassment (and violence) in the workplace.
Under the Code, all employees are protected from harassment on the basis of a list of human rights factors, including:
- Place of Origin
- Gender or gender identity
- Sexual Orientation
Further, under the Act, employers have several responsibilities when it comes to protecting their employees from and reacting to incidents of workplace harassment, including drafting and publicly posting a policy that includes the following information:
- Measures and procedures to control risks identified in an assessment of risks
- Measures and procedures for workers to report incidents of workplace violence
- Measures and procedures for summoning immediate assistance, and
- How the employer will investigate and deal with incidents or complaints.
Harassment refers to a pattern of behaviour, comments or actions that are unwelcome or should be known to be unwelcome. Harassment can be overt (e.g. taunting a person with racial slurs or other derogatory terminology) and it can be subtle (e.g. telling offensive jokes that are insulting to a particular group, even the insult was not directed at a specific person). Given the fear of reprisal from colleagues or higher-ups, many people choose not to speak out to the harasser directly, and in fact, this is not required to establish a pattern of harassing behaviour. The test is not whether the offending person knew they were causing offence, but rather that a reasonable person should know such behaviour could cause offence.
Ongoing harassment can cause a person to feel that their place of work has become a hostile, or ‘poisoned’ environment. While it takes a pattern of behaviour to constitute harassment, a single incident can amount to poisoning the work environment if it’s serious enough.
Employers have an obligation to investigate every report of harassing behaviour, whether the report is formal or informal. In the course of an investigation, all parties involved should be interviewed separately, and the employer should review any associated documentation. At the conclusion of the investigation, the employer should produce a report containing the findings of the investigation, as well as any remedial actions that may be necessary.
Employers may also be held liable for the actions of an employee, particularly if the employer fails to act in accordance with its obligations. Further, the higher up an offending employee is within the company, the more likely it is that the employee will be considered to be a “directing mind” of the business. If a person in such a position engages in harassing behaviour or fails to act when they know it is happening, the company may be held liable for their actions by a tribunal or in court.
Remedies for a Finding of Harassment
If an employer determines that a claim of harassment is valid, there are several possible remedies, depending on the severity of the situation. Remedies may include:
- Employee training
- A transfer of the offending employee(s)
- Termination of the offending employee(s)
- A formal apology
Any person who uses derogatory language to harass a co-worker, particularly based on the grounds set out in the Code, risks termination for just cause. Employers are responsible for the actions of their employees, and this type of behaviour creates an environment that threatens the mental health and well-being of all employees.
Get Advice and Know Your Rights
It is important for employees to know their rights and for employers to understand their obligations with respect to harassment at work. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, and help you understand your rights and/or obligations. Contact us online or by phone at 519-821-5465 to schedule a consultation.