Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 2: Workplace Harassment

A dozen recent cases dealing with workplace harassment all reveal a three-part message for employers who have been alerted to issues of harassment in the workplace:

  • Stop the Harassment
  • Investigate when needed
  • Restore the Environment

Individual cases highlighted circumstances in which employers did not meet the duty to respond.  Below you will find snapshots of issues of which employers must be mindful:

Red Hot Button Issues

Several cases tell the story of managers who take no action despite having clear and present reason to do so.  Two factors that managers should recognize as red hot buttons with respect to harassment are:

  • Written complaint
  • Verbal complaint

Irrelevant Excuses

Many cases relate the bewilderment of managers before a so-called grey area of workplace issues.  Faced with their own particular circumstances, they all believe they have acted reasonably in not responding to issues of harassment.  Tribunals and Courts tackled these excuses head on, removing them from the grey area (and effectively into the red hot button area). The excuses offered by the managers and rejected by Arbitrators and Tribunals alike are:

  • Workplace culture of joking
  • Promise of confidentiality
  • Alleged harasser does not work here 
  • Complainant does not even work here
  • Alleged harasser is a manager
  • Complainant did not come forward

Inadequate Response

Other cases highlight the issue of the adequacy of the employer's response. The goal of an employer's response is to make the alleged harassment cease and to restore the workplace environment...

  • Inadequate response for coworkers
  • Inadequate response for complainant

Remedial action taken by the employer in the wake of an investigation will not protect it from litigation if the action taken was inadequate for either the complainants or his/her coworkers.

Employer's Response Leads to Retaliation

One recent case highlights two ways in which the employer's actions in response to a harassment complaint made things worse for an employee who had been the victim of racial harassment:

He did not take measures to protect the complainant from retaliation When retaliation occurred, he placed part of the responsibility on the victim

Without adequate follow-up, remedial action taken by the employer can lead to retaliation that been devastating for complainants and ultimately lead to employer liability.

Meeting the Test in Employers Response

In a 2002 case, a Human Rights Tribunal outlines the test for whether an employer has responded reasonably to allegations of sexual harassment.

Cases

Red Button Issue Written Complaint

Bottom Line

If an employer receives a written complaint of workplace harassment, it has to respond quickly and effectively.

Workplace Harassment

In  Amalgamated Transit Union v Toronto Transit Commission (Ontario Grievance Arbitration) 2004, the complainant was a mechanical service worker with the TTC.  This employee, who had always received glowing evaluations from his various foremen, was bewildered to find himself working for a new foreman who was severely critical of his work.  The foreman persistently criticized the worker's performance while refusing to provide him with either training or assistance. He "punished" the complainant by refusing to allow him to go on breaks and "rubbed it in" by allowing his coworkers to go on extended breaks.   In a bid to get away from the alleged harasser, the worker transferred to a lower paying position in another unit.  Here he performed well until the foreman was transferred to the same unit where he soon resumed the harassing conduct. 

The Complaint

This time, the worker wrote a long, well-documented statement outlining the workplace harassment he had allegedly suffered under the foreman.  Moreover, this statement of complaint was signed by several coworkers who had witnessed the harassment. 

Failure to Respond

 After receiving the complaint, the employer failed to respond; a supervisor chose not to proceed with discipline and the Human Resources Department decided not to investigate the complaint.

Arbitrator's Ruling

The union filed a grievance.  In its defense, the TTC argued that the Collective Agreement had no article dealing with harassment, and that the issue was therefore moot. The Arbitrator disagreed; the collective agreement, it maintained, had an implied anti-harassment term. The Arbitrator made an extensive award of $25,000 in general damages. He found it incomprehensible that no one in authority took the time to respond to the complainant's well documented and witnessed statement.

Red Button Issue Verbal Complaint

Bottom Line

If an employer receives a verbal complaint of workplace harassment, it has a duty to respond quickly and effectively.

Workplace Harassment

In Gough v C.R. Falkenham Backhoe Services, the complainant was the only black employee working for a construction company.  For five years, he was the target of racist stories, comments and slurs by coworkers. During this time, he was consistently given the worst jobs and denied the opportunity to advance in the company by his supervisor. 

Failure to Respond 

When he went off-site to complain to management, nothing was done. 

Ruling of the Human Rights Board 

When called before a Human Rights Board, the employer claimed that it had been unaware of any racial harassment occurring on the construction site.   The Board found that the employer was aware of workplace harassment and should have taken immediate and effective action.  The Board also warned that ignoring a complaint of workplace race harassment (including not investigating) is tantamount to giving consent to race discrimination/harassment . It awarded the employee $8000 in general damages.

Excuse: Workplace culture of joking

Bottom Line

What is a joke to some is harassment to others; an employer can not use "workplace culture of joking" as an excuse not to respond to a complaint of harassment.

Workplace harassment

In Nova Scotia Government and General Employees Union v Capital District Health Authority (harassment policy grievance) here, 25 employees were being exposed to a poisoned environment caused by a supervisor who sexually harassed female staff.  17 of the employees, feeling bullied and harassed, went to a manager to explain what was going on.

Failure to Respond

The manager failed to respond to the plight of the 17 staff members  in part because she had rationalized the harassment and diminished its impact. The manager reasoned that this particular unit had a workplace culture of joking and banter.  In this regard, the supervisor's conduct could be interpreted as "innocent" conduct that had been taken "the wrong way".   However, when 4 of the 17 employees filed a grievance, the employer retained an external investigator who found that the supervisor had harassed and bullied his staff and that management had failed to respond properly. In mediation, the parties could not agree upon damages, so the case went to arbitration.

Arbitrator's Ruling

The Arbitrator ruled that managers must understand that what one person hears as banter can be perceived by another as outright discrimination or harassment. It is thus incumbent on employers to ensure that all staff recognize the difference between innocent conduct and that which may be perceived as insensitive and hurtful. Furthermore, they must provide a safe working environment for all employees, not just those who file grievances. The Arbitrator awarded $10, 000 to the entire unit in recognition of the impact of the harassment to all the workers there.

Excuse: Alleged harasser does not work here

Bottom Line

It does not matter if the alleged harasser works for the employer or not; if the former is associated with the university (committee work, etc...) the latter has a duty to respond.

Workplace Harassment

In Matteson v Presbytery of Prince Edward Island a female Minister endured three years of gender-based remarks from congregation members decrying the existence of female ministers.  She also received anonymous letters accusing her of sexual improprieties; more specifically of having sexual relationships with other females, including choir girls. She also endured stalking by the chair of the manse committee. 

Failure to Respond

Not only did the committee refuse to investigate the accusatory letters, it also refused to stop the chair of that very committee when he began stalking the minister.  The minister was forced to wait two years for the Church to strike a commission to investigate stalking by the chair of the manse committee and another three years for action to be taken to stop the stalking.  The commission found that the Minister was innocent of the sexual predation charges, but recommended that she leave the province and get psychological counselling.  Soon thereafter, the Church began sending investigators to evaluate the minister; she was eventually dismissed, her pastoral ties severed and her license suspended. In despair, she filed a complaint to the Church.  When the Church did not respond, the minister went to the Human Rights Commission.

Ruling of the Human Rights Commission

A Human Rights Commission found the Church responsible for sex discrimination against the minister, including the stalking; even if the stalker was not an employee, he was a member of the Church and served on the manse committee; members of the Church administration knew of his actions and could have acted earlier to stop it.

Excuse: Complainant does not work here

Bottom Line

Employers cannot promise confidentiality for staff who complain of workplace harassment

Allegation of Workplace Discrimination

In Nelson v Lakehead University, the complainant applied for a full-time tenure track assistant professor position in the Faculty of Business Administration with Lakehead University. He was interviewed along with other candidates.  During deliberations, one of the Committee members was alarmed to hear fellow committee members mentioning the complainant's age (52) as well as the outdated nature of his research.

Failure to Respond

She wrote a letter of concern to the Dean, who did not investigate the allegations.  The Dean claimed that the allegations were not founded.  When the complainant did not get the job, the committee member informed him of her concerns.  He filed a complaint with the Ontario Human Rights Tribunal alleging:

  1. that his age had been directly raised during the selection process;
  2. that the requirement for recent/current research experience had an adverse impact on him because of his age (52);  and
  3. that the University and the Dean failed to take reasonable steps to investigate and address allegations of discrimination in the job competition process and condoned a discriminatory act by proceeding with the vote despite the allegations.

Ruling by the Ontario Human Right Tribunal

The Ontario Human Rights Tribunal found that the University did not discriminate against the complainant, either directly or indirectly, on the basis of his age during the selection process. However,  it found that the response to the complaint of discrimination by the committee member was inadequate and that the Dean and the University failed to take reasonable steps to investigate the allegations.

Excuse: Alleged Harasser is a Manager

Bottom Line

The "traditional right to manage" can not be used as a defense for harassing conduct.

Workplace Harassment

In Teamsters Canada, Local 419 v Tenaquip Ltd (, the complainant (a warehouse labourer) was subjected to bullying behaviour by his supervisor.

Failure to Respond

The labourer complained. During the investigation, the company admitted to having hired the supervisor because he was a bully and therefore capable of handling problematic employees (like the labourer). In its grievance, the union claimed that the company had breached its obligation to provide a safe and healthy place of employment. In its defense, the employer claimed the manager was simply exercising his tradition right to manager as he saw fit.

The Arbitrator's Ruling

The Arbitrator awarded a complete remedy. A complete remedy, it ruled, can include discipline on a member of management, if such a remedy is necessary in order to restore the environment. The "traditional right to manage" can not be used as a defense for harassing conduct.

Excuse: Complainant did not come forward

Bottom Line

When employees fear retaliation for complaining, they may be exempted from the general rule about reporting incidents directly.

Workplace Harassment

In Savage v 984239 N.W.T. Ltd., a woman who worked in a small engine shop was sexually harassed by two co-workers; she was physically assaulted, subjected to gender-based insults and taunting, and threatened.

Failure to Respond

The complainant was too afraid of retaliation from the alleged harassers to file a complaint with the owner. She did, however, talk to co-workers about the unwelcomeness of the conduct. One of those coworkers eventually reported the harassment to the owner, who did virtually nothing to discipline or stop the alleged harassers.

Panel's Ruling

The owner's defense for not responding to workplace harassment was that the complainant had not complained directly to him about the situation. The Human Rights Panel found that the harassment was reported to the owner by a third party, which was sufficient notice. It added however that fear of repercussion is an exception to the rule that a complainant is expected to establish that she had expressly or implicitly made it known that the conduct was unwelcome. The company was ordered to pay her $9,220.33 for lost wages and $1450 for counselling expenses and agreed to hear submissions regarding compensation for disbursement and legal costs (generally these costs are not awarded in human rights cases, but because B.C. has a direct -to-Tribunal system, Tribunals are now considering awarding these costs . NOTE: Ontario has just gone to a direct-to-Tribunal system). The Panel found the complainant was entitled to a significant award for injury to dignity; women like the complainant have a right to engage in traditionally male-dominated careers in a workplace that they can feel comfortable in. It is the employer's duty to ensure that the workplace is not poisoned with harassment and discrimination. The company was ordered to pay $15,000 for injury to dignity. The two co-workers also had to pay damages (in the amount of $5,000 and $2500 respectively) for malicious and repeated acts of sexual harassment.

Inadequate Response for Coworkers

Bottom Line

Employers have a duty to ensure that the environment has been restored for all staff, not just for the complaint.

Workplace Harassment

The manager failed to respond to the plight of the 17 staff members for two reasons: 1) She had rationalized the harassment as being innocent conduct in a workplace culture of joking and 2) she because she had guaranteed confidentiality to many of the complainants. When 4 of the 17 employees filed a grievance, the employer retained an external investigator who found that the supervisor had harassed and bullied his staff and that management had failed to respond properly. In mediation, the parties could not agree upon damages, so the case went to arbitration.

Failure to Respond

The manager failed to respond to the complaints,  in part because many of the employees requested that she keep their statements confidential because they feared retaliation.  She made a promise to them and did not feel she could respond to the harassment without breaking that promise, thereby compromising the working relationship. When 4 of the 17 employees filed a grievance, the employer retained an external investigator who found that the supervisor had harassed and bullied his staff and that management had failed to respond properly.

The Arbitrator's Ruling

The Arbitration ruling held that employers are responsible for the effects of workplace harassment on all employees, whether they file grievances or not. In awarding compensation to the unit as a whole, the Arbitrator said “…I was struck not so much by the impact of each individual complaint, but by the overall effect these events must have had on the whole experience of working .. under this manager…It is appropriate in these circumstances that the impact on the whole group be recognized.”

Inadequate Response for Complainant

Bottom Line

Employers must ensure that the environment is harassment-free after responding to a complaint.

Workplace Harassment

In Ontario Public Service Employees Union, Local 206 v Hospital Lab, the complainant was a social worker who filed a complaint against her supervisor for workplace harassment.

Response

The Employer conducted an investigation and found that the supervisor had not harassed the employer. However, it took measures to help the complainant; it transferred her to another unit (away from the alleged harasser) and then assisted her in devising a professional development plan, the completion of which led to a good position in the institution. Unsatisfied with the results of the investigation, the complainant filed a grievance.

The Arbitrator's Ruling

The Arbitrator decided not to try the case. It reasoned that even if the investigation had been faulty and there had been harassment, the actions taken by the employer had remedied that situation for the complainant. There was therefore no reason to hear the grievance. However it did underscore that this was not a precedent. Remedial action taken by the employer, including financial redress, does not automatically mean that the employer will avoid adjudication or that it will render the issue moot. It is necessary for the employer to follow through- ensuring that the environment is harassment-free for the complainant and her former coworkers

Remedial Action leads to Retaliation...

Bottom Line

Employer must take swift action to respond to racial harassment; and it must also ensure that the complainant is protected against retaliation.

Workplace Harassment

In Coward v Tower Chrysler Ltd., A racialized employee was being harassed by the senior salesperson in a car dealership. He went to his manager to complain.

Employer Response

After receiving the complaint of racial harassment, the employer ‘talked’ about it to the alleged harasser, who retaliated by threatening the complainant. The employer told both employees to settle down, thus imparting partial responsibility for the harassment on the complaint. After a repetition of harassing behavior, the alleged harasser was sent home for the last hour of the day. When the complainant insisted on being provided with a safe working environment in which to work, the manager warned him of the employment consequences of not working out his own problems, claiming that no one in this business will hire someone who can't handle his own problems. The complainant was later put on probation for poor performance and eventually he resigned.

Human Rights Panel's Response

The Human Rights Panel found the employer responsible for failing to provide a quick and effective response and awarded $5000 in damages: “An employer has an obligation to “take prompt and effectual action…to alleviate…the stress arising within the work environment… when it knows or should know of employees’ conduct… amounting to racial harassment.” This includes taking actions to prevent or address retaliation.

Meeting the Test: Employer's Response

Bottom Line

Tribunals have give some directions to employers who wish to avoid liability

Workplace Harassment

In Budge v Thorvaldson Care Homes Ltd. (Manitoba Human Rights Tribunal) 2002, a health care worker, after experiencing sexual harassment from another employee, reported the problem to her supervisor. Nothing changed. The complainant then discussed the issue with the president of the company and, to her astonishment, received a Record of Employment indicating that she had quit (she had not). An investigator found that the president had prior notice of the employee's harassing behavior through a letter written by the company's cook. In that letter, the cook had outlined the issue, identifying the alleged harasser.

Failure to Respond

The owner responded to the cook's letter by being dismissive of the allegations of harassment and by intimidating her.

Panel's Ruling

The Human Rights Tribunal made an award requiring the employer to adopt and implement a harassment policy, to monitor the harasser, to report to the Commission on steps taken, to compensate the complainant for lost wages and to pay her $4000 for injury to dignity. The Tribunal found that where an employer is aware of allegations of sexual harassment, whether or not the victim comes forward with allegations, the employer had a duty to investigate the complaint, educate its workforce and make it clear that harassment is unacceptable.

Test for whether an employer has responded reasonably to allegations of harassment:

  • Has an awareness of harassment as prohibited conduct
  • Has developed and Implemented an effective complaint mechanism
  • Acts with alacrity in handling complaints
  • Deals with allegations seriously
  • Provides a healthy work environment Informs complainant of response Investigates when required to ensure an effective response