HRTO: The Human Rights Code Does Not Necessarily Protect Employees From Uncomfortable Conversations

Written on behalf of Peter McSherry

The Human Rights Tribunal of Ontario (HRTO) recently dismissed a claim filed by a nurse who alleged that she was being subject to uncomfortable sexual conversations at work, which constituted discrimination and harassment and violated her rights at work. The HRTO ultimately found that being made to feel uncomfortable during conversations in the workplace does not necessarily constitute harassment or discrimination under the Human Rights Code (Code), even if the subject matter discussed with matters that fall under the Code.

Uncomfortable Questions

The Applicant worked as a registered practical nurse in a hospital. Several sexually suggestive workplace incidents led her to file her human rights application.

In one instance, a female colleague asked the Applicant whether she and her boyfriend have sex. The Applicant didn’t answer, and when asked again, said they were waiting until they were married. She stated she had previously told her colleague she self-identified as a Christian. The Applicant argued this conversation amounted to discrimination or harassment because the personal nature of the questions made her feel uncomfortable and related directly to her religion. After complaining about the situation to her manager, the Applicant claimed her manager told her to ignore the questions and that there was nothing management could do to prevent such questioning.

The Applicant also claimed the same colleague brought up the issue of her celibacy on other occasions over the course of more than a year. The same colleague also asked her about her personal life, such as where she lived, whether she lived with her parents, and about her personal grooming habits, including her use of makeup.

The Applicant further claimed that during the same time other colleagues treated her unfairly or also asked personal questions. Following a transfer to another part of the hospital, a different colleague asked the Applicant whether she had ever been to a gynecology appointment. The question arose after the Applicant stated she did not know what a speculum was – a common tool in a gynecology appointment.

The Applicant eventually returned to the unit she originally worked in and was asked to undergo an evaluation by an educator. The Application subsequently asked to be transferred to another unit due to the alleged discrimination and harassment, again arguing that the comments and questions she was subject to by her colleagues were based on the protected grounds of age, creed, and sex. Upon reviewing her allegations, the hospital’s workplace consultant determined these questions and discussions did not constitute violations of the Code and the Applicant’s request for transfer was denied.

The Applicant ultimately left work in February 2016, and refused to return. The hearing was conducted four months later.

No Link to Protected Grounds

The HRTO dismissed the Applicant’s claim as having no reasonable chance of success, stating that it is not the HRTO’s job to intervene in every situation where people are made to feel uncomfortable.

The adjudicator noted “while these are very personal questions about the applicant’s sex life and religious beliefs, it is again my view that questions of this nature in this specific context cannot be elevated to the level of discrimination or harassment because of sex and/or creed in violation of the Code.”

The HRTO further noted “While it is truly unfortunate that the applicant has not felt able to return to the workplace, there is nothing in the material before me to link or connect any of these events to any of the protected grounds cited in the Application. I appreciate that the applicant believes that she is a good nurse, and disputes that she requires evaluation by a nurse educator. But that is not a matter within this Tribunal’s jurisdiction. This Tribunal’s jurisdiction is only to address allegations of discrimination or harassment related to one of the protected grounds listed in the Code. For all of the reasons set out above, the applicant has failed to establish that link or connection.

It is important for employees to remember that workplace disputes and human rights issues are always decided on a case-by-case basis. If you have questions about whether a situation at your workplace may constitute a violation of the Code, call the office of Peter McSherry at 519-821-5465. Peter McSherry has significant experience advising clients on in harassment and discrimination in the workplace and representing and can advise you in evaluating your options in order to pursue an appropriate and satisfactory resolution.