An employer has an obligation to provide a harassment-free and healthy work environment. Ontario’s human rights legislation does not require an employee to be the direct target of a hateful or harmful religious-based comment at work in order to bring forth a complaint as it recognizes that a workplace that tolerates such comments can become a poisoned one. The employment relationship is an area that legislation has afforded extra protection, as even if a comment would not constitute “hate speech,” it may still create a poisoned environment and constitute harassment in breach of the Human Rights Code: a course of vexatious comment or conduct that is known, or ought reasonably to be known, to be unwelcome. A single instance of an offensive comment, such as labelling an employee a terrorist, or making an off-colour joke about someone’s religion may trigger a breach.
This type of rhetoric may emerge amongst employees in the workplace. An employer can be held vicariously liable for the conduct of its own employees if it learns of harassing behaviour and condones it, or if someone in management imparts the harassing behaviour. An employer thus has its own obligations in the process once the alleged offensive conduct comes to its attention or it ought to have known about it. It should have a policy in place to address any concerns of harassment brought forth, including those that come to its attention informally. It should treat the complaint seriously, engage it promptly, and take steps to ensure that the individual bringing forth the complaint is provided with a harassment-free work environment and is not subject to reprisal. Alternative dispute measures may be offered; however failing the agreement of all parties to participate, and absent a resolution in that forum, it may be necessary to investigate the concerns. An employer should keep the employee apprised of steps taken to address the complaint and the outcome of it.
These matters should be dealt with promptly to ensure that employees understand that offensive and harassing comments will not be tolerated. Again, an employer may wish to offer training in cultural competency or human rights as a preventative measure.
We have seen a troubling correlation between harmful rhetoric and an increase in hate crimes. An employer has an obligation to ensure that it does not foster or condone either.
This blog post, an adaptation of a Question and Answer with Dr. Helen Ofosu of I/O Advisory Services, was written by Alayna Miller, a member of the Employment team. She can be reached at 613-369-0374 or at alayna.miller@mannlawyers.com.
