For more, read my latest post on the topic on Slaw

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One important lesson I took away from the presentation by Andrew Lawson was that—in Ontario at least, but Manitoba, Quebec and Saskatchewan have similar workplace harassment statutes—any communication between employees that takes place while in the course of work (which extends beyond the office walls and hours) can be considered harassing. For example, an email between consenting co-workers that contains a racist or otherwise offensive joke counts as harassment. Now, it’s not like I’m firing off tasteless emails to my colleagues on a regular basis, but sometimes you just don’t know that you’re about to say something stupid or insensitive.

Of course, ignorance of the law is no excuse to flout it, right? But I wonder if this type of law will put a damper on even harmless jokes between co-workers, and if it will lead to punishment for good people who find themselves at the centre of unintended controversies.

Ontario’s Occupational Health and Safety Act defines “workplace harassment” as:

Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

While the law says that harassment occurs when an employee pursues a “course” of unwelcome conduct against another employee or employees—implying a series of events—a single harassing instance can be enough to qualify as harassment. Indeed, Manitoba’s new definition of workplace harassment includes “A single occurrence, if it is shown to have a lasting, harmful effect on a worker”. (Quebec and Saskatchewan’s laws include similar provisions.)

Still, the various laws aim to create respectful workplaces, and if the provisions force employees to think twice about their jokes or comments before hitting “Send”, then that’s probably a good thing. Moreover, it’s up to employers to discipline employees, not the government, unless an incident leads to a human rights complaint or violence.

So what do you do? You start with a policy. In Manitoba, Ontario and Saskatchewan, employers must prepare a workplace harassment policy, either as part of their workplace violence policy or separately. The policy must include the legal definition of workplace harassment for your jurisdiction, and should include clear examples of harassing behaviour—such as the email example above—as well as the potential punishments. Then you train your employees on the policy and your expectations with regard to creating and maintaining a respectful workplace, and you make sure employees understand the disciplinary measures they will face if they disregard the policy.

But these are good policies for all jurisdictions. If your province or territory doesn’t have an explicit law on workplace harassment, that doesn’t mean employees can harass co-workers with impunity! Employers and employees across the country have a general duty of care that prevents harassing behaviour  in workplaces. A policy and set of procedures will just make it clear that an employer will not tolerate harassment among employees, and set out the consequences for such behaviour.

(Note that Manitoba, Ontario and Saskatchewan deal with workplace harassment under their occupational health and safety laws and regulations. Quebec deals with the topic under employment standards. This might affect the way you develop and arrange your policies.)

For more information, consult the First Reference Guide to Preventing Workplace Violence and Harassment. We’ve recently updated it to include amendments to Manitoba’s Workplace Safety and Health Regulations that will come into effect in February 2011.

Have you had a workplace harassment or violence training workshop yet? Did you find it informative and helpful? What do you still need to know about workplace violence and harassment?

Adam Gorley
First Reference Human Resources and Compliance Editor

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While many documented examples of diversity focus on race and gender, the concept of diversity is broader and encompasses factors including age, culture, personality, skill, training, educational background and life experience. The influence of a variety of perspectives and viewpoints can contribute to flexibility and creativity within organizations, which can help them thrive in a complex and competitive global economy.

Is she suggesting organizations hire unskilled and inexperienced workers with poor personalities?

Probably not—at least not exactly.

At HRinfodesk.com, we’ve laid out the business case for workplace diversity a few times before, but the CICA guide adds some nuance to the discussion, suggesting that directors must take diversity to heart and “set the tone at the top”. For example:

• How does diversity affect an organization’s ability to innovate and stay ahead of its competition?
• How can diversity improve problem solving at all levels and increase the effectiveness of risk management?
• How will diversity come into play with respect to management succession planning?
• What is the relationship between board diversity and board effectiveness?

There is no longer a uniform market—in Canada or around the world. Your markets and your employees are diverse and have diverse needs. The key is understanding that your market and your people are factors that continually support each other and push your growth. So when an organization incorporates diversity into its strategic planning, and its directors take on the challenge, it can gain the competitive advantage with its diverse and unique ideas, problem-solving capacity and risk management.

For detailed information on developing a diverse workplace, take a look at the Canadian Human Rights Commission’s A Place for All: A Guide to Creating an Inclusive Workplace.

You can find more information and sample policies on employment principles, employee relations, recruitment and selection, job posting, religious accommodation, accommodating disability, workplace harassment and violence, dispute resolution, fitness to work, flexible work arrangements, holidays and other issues related to diversity in Human Resources PolicyPro from First Reference. Finance & Accounting PolicyPro examines board structures, the role, rights and responsibilities of directors, succession planning and more.

Adam Gorley
First Reference Human Resources and Internal Controls Compliance Editor

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Nowadays, when I think of social networking, I think of Twitter, mainly because of its simplicity and inclusiveness. It’s easy to use, and because of that, people have come up with countless functions for it. But it doesn’t try to be everything for everyone; in fact, it encourages users to go elsewhere—to blogs, news sites, games and entertainment—and then come back for more.

Still, its ease of use can deceive users into false confidence, and lead people to say and do things they might not otherwise, with real—and sometimes legal—consequences.

Consider this quote: “I was surprised about the controversy, but I guess you never know who’s watching. … It’s ridiculous that it would become such a big deal, but you’re a professional so you still have to watch what you say.” Any professional could have said this after her or his first online faux pas. This was a football player with the Canadian Football League.

Like many other businesses, the CFL and its teams consider Twitter a valuable marketing tool, and encourage players to get online and engage with fans, but they understand—to some extent—the risk of players making inappropriate tweets. The quote above refers to Rob Murphy, a player with the Toronto Argonauts, who faced fines for tweets (now deleted) in which he mentioned “smelling foreigners” at Union Station and riding the train through “Frenchland”. Murphy insisted he made the comments in jest, but the league and his team fined him anyway, under its “social media policy”. Like any business, the CFL has to make it clear to customers that it doesn’t condone racism and discrimination, whether joking or serious.

And today I came across the Office of the Privacy Commissioner of Canada’s Twitter policy. This type of policy is important for any type of business, from professional sport leagues to government agencies, regardless of the number of employees. It’s also a good idea to train employees on the policy, and it’s imperative to apply the policy consistently.

The CFL’s Twitter story goes to show you that all types of businesses are discovering new ways to use social media to promote themselves, but the media are still too new to fully understand, and too amorphous to control. Twitter and other social media allow people to behave in new ways, but they don’t set out rules to limit the new behaviour. That’s up to the users.

Interestingly, despite Murphy’s questionable tweets, his popularity on Twitter has increased significantly since he posted them. That shouldn’t be too surprising: controversy can be a valuable tool to lure readers—just look at the business of gossip—but it’s probably not a great policy for the majority of businesses!

What do you think? Do you have a social media policy? Have you punished or warned any employee for contravening it?

Adam Gorley
First Reference Human Resources and Compliance Editor

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Your city, and others around the world, has recently published reports of preparations to celebrate Gay Pride. A small group of your staff is gathered around a newspaper article discussing Pride preparations, and you overhear the following lunchroom conversation:

“What do those faggots have to be proud about? They should be ashamed of themselves.”

The June 15th deadline that we have all been talking about, and many have worried about, has arrived—in fact, come and gone—and we are still here! Survivors!

June 15th, of course, is the date when amendments to the Occupational Health and Safety Act came into force requiring all Ontario employers to address the issues of workplace harassment and violence in concrete and visible ways (other Canadian jurisdictions have similar laws).

You have a legal obligation to understand how the race, religion and sexual orientation of your employees can impact their safety at work. Understanding these factors will empower you to take steps to protect your workers from harassment and violence as required by the new law.

One of the concrete methodologies created by the new law is the violence risk assessment. Statistics Canada data can assist you in understanding how your employees may be at risk for violence because of who they are.

Jewish people and black people are the most frequent victims of hate crimes based on their race and/or ethnicity according to a National Post report of Statistics Canada data released recently. The same article quotes Bernie Farber, CEO of the Canadian Jewish Congress, as saying,

“When there is a situation that has developed in the Middle East, dealing with the Jewish state of Israel, it is a truism to say hate crimes against Jews rise.”

Furthermore, sexual orientation motivated twice as many violent attacks in 2008 compared to the previous year. And Vancouver is the “gay-bashing capital of Canada”.

Recent amendments to health and safety legislation throughout Canada together with your due diligence obligations require employers to be aware of the type of information reviewed in this article. Be aware that your enhanced responsibilities with respect to workplace harassment and violence have just begun… regardless of your state of compliance with the new law.

Learn—don’t Litigate. Ensure that your knowledge is current. Invest in workplace training for yourself, your managers and your front-line staff.

Read more about Ontario’s amended Occupational Health and Safety Act on First Reference Talks.

Andrew Lawson
Human Rights Advisor, Learn Don’t Litigate
www.learndl.ca

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Last week, I wrote about a case in which the owner of a trucking company repeatedly harassed his South Asian employees with racist comments. When one employee confronted the boss, he said it was his company, implying that he could say and do what he wanted.

Also last week, I read a news story about Asian-Canadian anglers facing racially motivated attacks on Central Ontario’s lakes and rivers. The Community and Race Relations Committee of Peterborough even produced a public service announcement, indicating just how troublesome the problem has become.

And recently, Yosie (re-)tweeted about black farmers in the United States who won a $1.25 billion settlement from the government for systemic discrimination that prevented them from getting bank loans or forced them to wait for excessive periods to receive loans.

These stories show that not only does racism still exist at the personal and systemic levels in North America, but it also cuts across ethnic lines: Asian-Canadians, South Asian Canadians, African-Americans/Canadians, all “hyphenated Canadians”—we’ve got a long way to go before we are all just “Canadians” (or “Americans”). Still, I think I can fairly say that we are also progressing toward that goal, and the many immigrants to Canada who are proud of their adopted home country are helping us progress.

Take Cheryl Khan, the woman who stood up to her boss at the trucking company—the very owner, who felt he could discriminate with impunity, at least in speech. I don’t know if she is a native-born Canadian, but somewhere along the line, her family immigrated to Canada, and now, she is standing up for the Canada that could be, the country that people around the world look at as a beacon of freedom and peace and equality.

I have a point, which is that we all have a part to play in eliminating racism from Canadian society, and the workplace is a good place to start, since most of us will find ourselves in one for a large portion of our lives. Also, workplaces are subject to more stringent laws and regulations than individuals when it comes to discrimination. An individual may hold whatever beliefs she or he wants—in fact, these beliefs are protected by law—but an organization must be officially inclusive, with specific limited exceptions (e.g., bona fide occupational requirements and religious exclusions).

Let’s take a closer look at the lessons of the Khan case.

According to several employees, the employer used racist terms like “Paki” and “nigger” regularly, even daily, which contributed to a poisonous work environment. This sort of behaviour clearly goes against employees’ right to a workplace that is free of harassment and their right to equal treatment. (You’ll have to look at the human rights legislation in your jurisdiction for the specific wording, but the principle is the same.) In other words, this employer was wrong, and the Ontario Human Rights Tribunal ordered him to pay a large fine to Khan. The tribunal also ordered the employer to undergo sensitivity training and to implement an anti-harassment policy.

The tribunal found that the employer discriminated against Khan (based on her race) in both her employment and her termination. In testimony, the boss claimed that he fired Khan over her substandard performance and because she spent time on Facebook at work. The tribunal might have accepted these arguments if Khan was still on a probation period and if she wasn’t fired against the backdrop of discrimination charges, but under usual employment circumstances, alleged poor performance and undesirable conduct do not add up to just cause for termination without a series of warnings, ideally supported by consistently applied policies on discipline, conduct, social networking, and any other relevant issues. In other words, the employer was probably lying, and even if he wasn’t, his arguments for termination were poor, and likely wouldn’t have swayed the tribunal in his favour.

What other lessons might employers and employees learn from this and similar cases?

Adam Gorley
First Reference Human Resources and Compliance Assistant Editor

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The Star article outlines a case in which the owner of a trucking company harassed several South Asian employees with racist insults, culminating in an incident where he called one employee a “Paki” and referred to her children as “half-niggers”. In another incident, the boss asked, “Are there not any good white people we could hire?” Several employees claimed they heard this type of language daily.

At the Ontario Human Rights Tribunal, both sides brought witnesses, but the adjudicator found the complainant’s witnesses more credible, since they offered “clear and unproblematic” testimony, while the testimony of the employer and his witnesses was “inconsistent, troublesome and ultimately less persuasive”. Credibility is a key factor in tribunal cases, and defendants should look realistically at their witnesses and evidence before trying to defend against a charge of harassment or discrimination.

Ultimately, the adjudicator said, “Having weighed the evidence before me I find, on a balance (of) probabilities, that (the employer) did repeatedly use the terms ‘Paki’ and ‘nigger’ as well as making other offensive comments to the applicant that he knew would be unwelcome.” The tribunal fined the employer $25,000 for discrimination under the Human Rights Code, and $6,750 for lost wages due to her termination, and ordered the employer to institute an anti-harassment policy and undergo anti-harassment training himself.

This case is informative in a number of ways: while it would be wonderful and ideal to remove this employer’s racist tendencies, the best we can do is attempt to make him see the error of his ways via sensitivity training. It might be possible by some appeal to reason, emotion or simple economics to show him that his prejudices are harmful and plain wrong, but we can’t force someone to change her or his beliefs, no matter how much those beliefs disagree with the broader goals of society.

What we can do is apply rules consistently and impartially in order to discourage undesirable behaviour and build equitable and safe workplaces—that is, places that are free from discrimination and harassment. In this way, the employer might hold his disrespect for other races, but also hold his tongue in the workplace. In addition, the requirement to implement an anti-harassment policy should force the employer to consider his words and actions, and encourage employees to speak up when they feel someone is behaving unacceptably. I hope in this case, the penalty is enough to encourage the employer to look closely at his beliefs and try to understand why they are inappropriate.

This type of case is also the reason that HRSDC has a strategy to deal with racism in Canada’s workplaces. The strategy includes workshops, research papers, links and, importantly, statements of the business case for diversity in the workplace, in language any business owner should understand:

Diversity can help organizations: identify and capitalize on opportunities to improve products and services; attract, retain, motivate and utilize human resources effectively; improve the quality of decision-making at all organizational levels; and reap the many benefits from being perceived as a socially conscious and progressive organization. These benefits should be manifested in an improved bottom line and maximization of shareholder value.

At First Reference, we’ve been talking a lot recently about harassment in the context of occupational health and safety law and regulations, and in Ontario, as of June 15, 2010, all employers will have to have in place an OHS-based anti-harassment policy. It would be wise to develop a policy that deals with discrimination and sexual harassment, too.

Does your workplace have anti-harassment/discrimination policies? Have you experienced or witnessed incidents of discrimination or harassment?

Adam Gorley
First Reference Human Resources and Compliance Assistant Editor

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