Erica Pinsky

ARTICLE

Workplace harassment is front and centre these days. We all read and hear a lot about harassment, discrimination and human rights violations in the newspapers and on TV.

 

Is this something you as an employer need to be concerned about? Before you can answer that question, you should be sure you know what workplace harassment and discrimination mean. Try this short quiz.

 

An employee comes to you to complain that her supervisor yelled at her in front of her co-workers and called her incompetent.

An employee tells you that every time she asks her co-workers if they would like anything from the snack truck, one of them always makes a comment about her size.

A male employee of colour forwards e-mail to you that was sent to him with a joke about a gay man, a rabbi and a Hindu. He wants to discuss it with you.

An employee who is losing his hair tells you that his co-workers call him baldy.

A customer calls you to advise you that one of your employees told her he couldn't understand her when she spoke English.

 

How did you do? If you were not sure if these are issues of discrimination or harassment, don't feel badly. You are not alone. Most of us are not sure what the terms workplace discrimination and/or harassment mean. Many of us are unaware of the laws that exist to deal with workplace discrimination and harassment, and what if any our responsibilities are as an employer.

 

This article will try and help to clear up the confusion surrounding this subject by providing some information for you. We will look at the legal framework of human rights law in Canada, we will provide a definition of workplace discrimination and harassment, we will discuss the relationship of an employer to the law, and finally we will offer some brief suggestions on how to handle incidents of discrimination and harassment in the workplace.

 

A. The Legal Framework

The foundation of human rights law in Canada is found in Section 15 of the Canadian Charter of Rights and Freedoms. The Charter can be thought of as the foundation for law in Canada, as it sets out the rules by which governments have to operate.

 

Section 15, which was passed in 1985, requires that all laws in Canada, both federal and provincial, treat all people fairly and do not discriminate.

 

The Charter also requires each province and territory to have human rights laws to protect the fundamental rights and freedoms of its inhabitants. In Canada the federal human rights law is the Canadian Human Rights Act, and in BC the law is the BC Human Rights Code. Each province has its own legislation which deals with human rights for its citizens. (please ensure that you obtain a copy of your provincial human rights legislation)

 

Human rights law in Canada covers three areas of our lives: employment, provision of goods and services, and housing. Human rights law does not govern the private arena, or what we do in our own homes. However, it is the inclusion of the sphere of employment in the law that makes it a requirement for all employers to be concerned about human rights law. The law sets out the rights and responsibilities of both employers and employees. It creates some obligations for employers that we need to be aware of.

 

B. What is Discrimination in Employment?

Human rights laws require that employers provide equal access to employment opportunities and fair treatment for all employees in the workplace. A more legalistic or formal way to put this is that the law prohibits discrimination in employment.

 

Discrimination occurs when individuals are excluded, or prevented, from participating in activities or opportunities which they have a legal right to participate in. At work this might mean that someone is denied work or promotion, or is treated unfairly, simply because of their age, sex, the colour or their skin, or where they came from. The intention of the law is to ensure that only job-related considerations such as ability, merit and responsibility are used to evaluate applicants and employees.

 

Age, sex, race or disability are some of the personal characteristics that are referred to in human rights law as the prohibited grounds of discrimination. Each Human Rights Code or Act contains a specific list of prohibited grounds. In BC the prohibited grounds of discrimination are race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age, or unrelated criminal or summary conviction.

 

C. What About Workplace Harassment?

Human rights law also protects employees from harassment at work.

 

Discriminatory harassment, including sexual harassment, occurs when someone is victimized or made to feel uncomfortable, because of a personal characteristic which is listed in the Human Rights legislation. (see above)

 

Fundamentally harassment is a type of workplace conflict. It becomes a human rights issue only if the basis for the harassment is a personal characteristic covered in the law, for example, making racist remarks about someone, putting up pictures of scantily clad men and women, sending an email around the office that targets individuals with disabilities, joking about a person's age, commenting on someone's sexual orientation. If the individual finds the remarks or behaviour offensive, or if the behaviour has negative job consequences for the individual, that individual may make a complaint of human rights harassment.

 

D. What is Personal Harassment?

There is a lot of confusion around the term personal harassment. Essentially, there is only one type of harassment which a non-unionized employer is legally responsible for, and that is Discriminatory harassment, which is defined above. Personal harassment may seem the same as human rights harassment, but the crucial difference is that the basis for the conflict is not a personal characteristic that is listed in the human rights law. (E.g., an individual is called names but they are not related to race, or religion or sexual orientation (e.g., lazy, stupid, irresponsible). In such cases an individual could not file a human rights complaint. In many cases these personal harassment complaints can be defined as workplace bullying complaints. Workplace Bullying has been defined as repeated incidents or a pattern of behaviour that is intended to intimidate, offend, degrade or humiliate a particular person or group of people. Bullying can also be described as the assertion of power through aggression. It is preferable to use the word harassment to describe cases which fit the definition of Discriminatory harassment included herein. All other cases should be described and dealt with as workplace bullying and or conflict.

 

At this point you may want to go back to the examples which were provided at the beginning of this article. Hopefully you now have a better idea of which cases could be considered human rights issues. (answer - questions 2,3 and 5 could potentially be human rights issues. These issues would require further investigation to determine whether or not they are cases of Human Rights discrimination or harassment. Questions 1 and 4 are issues of workplace bullying/ conflict.)

 

E. Employer's Liability in Human Rights Law

Now that we should have a clearer understanding of workplace discrimination and harassment, let's turn to the issue of the obligations which are created for an employer by human rights laws.

 

The law creates a proactive obligation for an employer to create and maintain a work environment which is free from discrimination and harassment. An employer is required by law to run his/her business in a way that is provides equal access to jobs and other opportunities for all employees and to treat everyone in a non-discriminatory manner.

 

What does this really mean? Let's say that an employee files a sexual harassment complaint against a co-worker. The employee testifies that she told her supervisor but nothing was done. You (as the employer) may testify that you knew nothing about it, the supervisor never told you. The courts will say it doesn't matter whether the supervisor told you or not, you are still responsible and whatever damages or remedies are assessed against you, the employer.

 

The courts will say that:

it is your responsibility to ensure that your supervisors know what to do if an employee approaches them with a complaint

it is your responsibility to make sure that all your supervisors are managing in a way that is non-discriminatory

it is your responsibility to ensure that all employees know what is and is not discrimination and harassment.

you are required to take whatever action is required to remedy (fix) the discrimination or harassment, up to and including taking firing someone if that is the only thing that will make sure that the discriminatory behaviour stops.

 

This is what employer liability in human rights law means. It is this concept of employer liability that makes it necessary for each employer to be concerned with the issue of human rights. It is not an option; it is a legal requirement.

 

F. How Can I Avoid Discrimination in Recruitment?

First off, make sure you have a written job description for each position. Structure this description on the basis of the "bona fide" or genuine requirements of the job. For example, if a position requires travelling, shift work or extended work hours, heavy lifting, height requirements, permits or licenses, specific educational qualifications or skills include this information in your job description.

 

The advantage of having a written job description is that you can use it as a guide when preparing advertisement and interview questions, and it will ensure that prospective candidates know exactly what the job entails. Human rights laws require that you do not discriminate, however, you have the right to hire the most suitable candidate for the position which you are filling. For example, if you are looking for someone to drive a vehicle, you may disqualify anyone who does not have a driver's license. Technically, this excludes all non-sighted individuals, which on the face of it is discrimination on the basis of disability, however, being able to see is a 'bona fide' or genuine requirement of a driving job. What is important from a human rights perspective is that you can defend whatever decisions you make on the basis of the actual job requirements.

 

Once you have prepared your job description, use it to guide you in writing your job advertisement and in preparing your interview questions. It is always preferable to have a set of written questions which you ask each candidate in an interview. This ensures that each individual who is interviewed is asked the same things and reduces the appearance of arbitrary or discriminatory treatment in the interviewing process. Of course, you should take notes of each candidate's answers and keep those on file in the odd chance that an unsuccessful candidate decides to file a human rights complaint.

 

The same principles apply when interviewing individuals for internal promotions, transfers, or in disciplinary situations or performance appraisals. Stick to a set of prepared questions that are related to the specific issue at hand.

 

G. What Questions Can I ask in a Job Interview?

In general, if you are looking for a lot of information you want to ask open questions in an interview. Open questions are questions that begin with words like "Please describe' or "Please tell me" or "How would you" "What did you" or "Why is that." These types of questions encourage the candidate to give more than one-word answers, which can happen if most of your questions begin with "Do you" or "Have you." Use closed questions when you just want a yes or no answer.

 

You may ask any question that is directly associated with the genuine requirements of a job such as "have you reached BC's legal working age" You should not ask a person his/her age or birth date.

 

You may ask if someone is legally entitled to work in Canada, but you may not ask an individual where he/she comes from.

 

You may ask an individual if he/she is available for shift work or work on the weekend if that is part of the job requirements, but you may not ask an individual about his/her religious practices. (E.g.  Ask " Are you available to work on Sunday" rather than " This job requires you to work on Sunday, do you go to church")

 

You may ask an individual if he/she is available to travel and work evenings but you may not ask him/her if he/she is married, has children, or is pregnant.

 

If an individual begin to disclose personal information in an interview, cut him/her off as politely as possible and return to your list of prepared questions, unless the personal information relates to a disability which may require accommodation on the job.

 

H. How do I deal with the issue of disability?

If an individual with a disability applies for a job, you may disqualify that individual only if the disability prevents that individual from effectively performing the essential components of the job. Simply put that means that you may ask an individual questions that will allow you to determine whether or not the disability will allow the individual to perform the essential components of the job. Once you have enough information to make that decision, you should leave aside the issue of disability and go on with other questions that will help you determine the individual's suitability for the position.

 

The law requires employers to accommodate disability to the point of undue hardship. Determining "undue hardship" is a rather complicated legal issue. What you need to know is that if a disabled individual can do the job and is the best candidate for the job, you must hire that individual, even if it requires some accommodation on your part. If you are uncertain as to whether or not the accommodation required is "undue hardship' or not, you should get advise from a qualified human rights professional.

 

I. What's An Employer to Do?

There are 3 things you should do to be sure that you are complying with human rights law:

    Have a policy about workplace discrimination and harassment

    Provide some awareness training for all employees, especially supervisors, about human rights

    Have a procedure in place to deal with complaints when they arise.

 

It is crucial not to ignore an issue or a complaint. Research has proven that most complaints of discrimination and harassment can be resolved if they are dealt with within a few days of a complaint being filed.

 

You are not required to be an expert in human rights, or to solve complaints yourself. What you need to do is make sure that you have someone who can help you if a complaint arises.

 

The most important thing you can do is to try and create a respectful working environment for all of your employees. As we said earlier, human rights complaints are just one type of workplace conflict, and everyone benefits when conflicts are resolved quickly and effectively. Employees are happier and more productive, employers can attract and retain the quality of employees that they need, and turnover is reduced. Ultimately, good human rights practices are good for business.

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