Human Rights in the Workplace

Fact versus fear: how employers should respond to H1N1 in the workplace to avoid human rights violations

Many of you will have heard about the story that hit the news last week of a Manitoba man who was barred from patronizing a restaurant in Seven Sisters, Manitoba because his wife had been diagnosed with the H1N1 flu.  The story broke on Richard Cloutier's show on CJOB radio and I was fortunate enough to have been interviewed by him on-air about the human rights implications of the restaurant's decision to deny service.  The man has, apparently, now filed a human rights complaint against the restaurant with the Manitoba Human Rights Commission.  Time will tell how this case ultimately resolves itself.

While this particular situation involved the denial of services by a service provider, the comments I made on the radio show are equally applicable to employers and the workplace.  I thought it might be useful here to let you know what I said and expand upon my comments a bit further:

What is H1N1?

Health Canadaadvises that H1N1 is a strain of the influenza virus that usually affects pigs (and so sometimes this flu is also called the "swine flu").  This virus can, however, make people sick as well.   It is a respiratory illness that causes symptoms similar to the regular human seasonal flu.

How do I deal with H1N1?

1.    Operate based on Fact versus Fear

When dealing with or otherwise deciding how to address H1N1, businesses of all stripes need to operate on the basis of fact versus knee-jerk fear.  This is often easier said than done, especially when dealing with health and safety-related issues, but it is critical.  The minute you take action based on fear versus fact, that triggers a risk of running afoul of the many pieces of legislation business owners need to abide by but, in particular, human rights law. 

In terms of H1N1, it is important for business owners to understand what it is, how it is transmitted and how to protect against an outbreak.  Accessing information on the Public Health Agency of Canada's website on the H1N1 virus or similar information placed on provincial government websites (such as the Province of Manitoba's fact sheets) are key steps.

 

2.    Assume that H1N1 constitutes a disability under human rights legislation

Human rights legislation across Canada prohibits discrimination on the basis of disability or perceived disability.  While historically the flu hasn't been considered a disability by human rights commissions, that related to the regular human flu which is very common and usually of short-term in duration.  H1N1 has been classified as a pandemic virus by the World Health Organization which may well result in human rights commissions considering it in a different light.  Such an approach would be consistent with the Ontario Human Rights Commission's response to the SARS outbreak back in 2003. 

It is important to remember as well that human rights commissions take a broad approach to what constitutes a disability.  A person can, as a result, be considered disabled on the basis of how they are treated even if they do not have an actual disease or illness.  Consider, for example, the man who was barred from the restaurant.  He did not have H1N1, his wife did.  Yet, the restaurant seems to have treated him as though he had the disease.  The H1N1 label had an effect on him anyway.  A human rights commission may well conclude that this person was perceived as having a disability and discriminated against as a result of that perception.

In my view it would be wise for employers to assume that H1N1 would be considered a disability by a human rights body and operate on the basis. 

3.    Uphold your human rights-related responsibilities to all employees impacted by H1N1

The human rights-related responsibilities of employers extend not just to employees who are or may be infected by the virus but also to employees who are not infected.  

Employers must ensure that their workplaces are free of discrimination and harassment.  This means that they need to:

a.    make sure they have a clearly thought out plan to respond to H1N1 in the workplace, one that does not discriminate against employees who have H1N1 or may have been exposed to H1N1.  In particular, you want to be able to justify any actions you take in relation to employees who have H1N1 or may have been exposed to H1N1 on the basis of fact-driven health and safety precautions.  Here, you would want to follow the lead of public health officials and medical professionals;

b.    make sure that you take appropriate steps to accommodate employees who are disabled by H1N1.  What type of accommodation will be reasonable will depend on the circumstances.  It can, however, include things like permitting the employee to take time away from work, allowing the employee to work from home, or providing the employee with alternate work;

c.    make sure to refrain from harassing employees who may have H1N1 or are suspected of having H1N1 and prevent your employees from doing the same.  People have a natural fear of the unknown and since H1N1 is still a very new disease you may find your non-infected employees acting out of fear when they find out or suspect a work colleague has come down with H1N1 or has been exposed to someone with the illness.  This can result in harsh treatment of their colleagues.  Take any complaints of this type of harassment seriously and take appropriate steps to put a stop to any inappropriate behavior. 

Conclusion

While the barring of the man from the restaurant is the first incident of this kind that I have heard about relating to H1N1, I'm hopeful that it will be the last.  I'm also hopeful that the above information helps you avoid coming into conflict with the human rights legislation in your jurisdiction in relation to how you operate your business if H1N1 knocks on your door.

Photo credit:

Twitter Talk - August 24, 2009

I'm thankful I was able to get out with my family yesterday and enjoy our one whole day of summer yesterday!  (We almost didn't recognize the blue sky and sun when it showed up in the morning).  Today, we got hit by a thunderstorm which had me wondering if we were going to leave the house at all!  Guess I should be thankful we have a roof over our heads in order to continually duck this lousy weather.

Anyway, amidst the weather wranglings, there has been a lot of interesting discussion on Twitter during the past week covering everything from enhancing workplace diversity, to how workplace sexual harassment is morphing with the new technologies and even to how those new technologies are impacting employer behaviors.  You'll also see a link to a great video that shows how a person who is blind navigates the internet on his computer.  Happy reading/viewing!

Alberta companies enhancing diversity of their workforces esp in male dominated fields http://chilp.it/?1dec50

Thoughts? Are women penalized in the wkpl if also a mom? http://chilp.it/?06be8e

The 'new' sexual harassment is less in-your-face than in the past but still a big problem. http://chilp.it/?a0fb02

RT @jonhyman: New blog post: Papering a personnel file as evidence of retaliation? http://bit.ly/Ijhgs

Just the beginning...RT @RossRunkel: 7 percent of hiring managers look at applicants' Twitter posts http://tinyurl.com/kkk9jr (@djillpugh)

RT @GlendaWH: Have you ever wondered how a blind person uses a computer? Here's a great video http://bit.ly/uuFC4

 

On "boobie girls", retaliation and bad decisions

Having moved to a new house and home office and having 'sort of' settled, I'm back to thinking about blogging again.  First on my list was to tackle a decision that was kindly brought to my attention some time ago now by David Doorey over at Doorey's Workplace Law Blog.   It's a decision that I think is worthy of talking about here because it illustrates how even human rights adjudicators can make things more complicated than they need to be.  And that, unfortunately, just makes it more challenging for employers to figure out how to handle similar situations.

THE FACTS

Schmor v. Stonechurch Vineyards Inc. involves a female employee who alleged sexual harassment by another female employee and reprisal by her employer.  Michele Schmor worked for Stonechurch Vineyards for a period of 4 months.  She was hired on an as-neeeded basis but not on a fixed term. During that time, she alleged that Lisa Edlington, a co-worker and Director of Events for the company in question, called her  "boobie girl" on four or five occasions in November 2006 in front of other employees and customers.  The "boobie girl" reference stemmed from Schmor's disclosure to Edlington that she had sunbathed topless while on vacation (Edlington had queried whether she had sunbathed sans suit).  Schmor found the comment to be embarassing and uncomfortable.  Schmor further contended that on one occasion in December 2006, Edlington asked her to climb up a pole in front of the workplace to fix a sign and then "slide down like a stripper."  Edlington also asked Schmor if she was wearing underwear.  Schmor found these comments offensive. 

At no time did Schmor raise a concern about Edlington's comments to Edlington directly or to anyone in management, feeling that Edlington had a close relationship with the company's president and so she had no one to go to.  She did, however, discuss the comments with some co-workers.  In mid-November, 2006, one of the co-workers spoke to the winery's owner about concerns she had with Edlington, including reference to the "boobie girl" comment.  Evidence at the hearing showed that there was no indication the co-worker was speaking on behalf of Schmor or at Schmor's urging when she spoke to the owner.  The co-worker, who had worked full-time for the winery for more than seven years was told to start looking for another job and was fired days later.  Schmor continued working through December and January but by the end of January, her shifts were eliminated.  On the other hand, the winery was hiring new employees to work in the store.  Schmor subsequently exchanged e-mails with the company's president only to be told that she was not going to be called back, could pick up her record of employment and that he was not required to give her a reason for why she was not being retained.    Schmor contended that her employer treated her in this manner because the company had found out about her concerns regarding Edlington's comments.

The company took the position that it had no idea Schmor was offended by any of Edlington's comments.  In relation to her retaliation contention, the company argued that Schmor had only been hired as a temporary worker for the fall of 2006.  The employer admitted that Edlington's daughter had been hired in early 2007 and did not deny that staff numbers had been expanded generally.  Regarding the co-worker's firing, the company's president did not deny that she had been told to start looking for a job after complaining, in part, about the "boobie girl" comment but said that she was just being given fair warning about the company's need to trim staff.

THE DECISION

The adjudicator concluded that Edlington had made the remarks alleged by Schmor (Edlington was no longer employed by the company at the time of the hearing and did not attend to defend herself) given two other employees testified they had heard them.  The adjudicator believed that Schmor was offended and embarrassed by the comments, particularly those made in front of customers and other employees.  But, he ultimately determined that the remarks did not constitute sexual harassment under Ontario's Human Rights Code.  And this is where the adjudicator starts to lose me.

He points out that the Code defines harassment as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome."  [Just as a side note here, "vexatious" is essentially another word used in the harassment context to mean "unwelcome."  In other words, a person finds another's comments or conduct to be demeaning, insulting or to cause discomfort].   The adjudicator goes on to conclude that:

1. although Schmor never informed Edlington about her concern with the "boobie girl" comment, it was something that Edlington ought to have known was unwelcome to Schmor because it was stated in front of customers;
2. there was no basis to conclude that Edlington ought to have known the "stripper pole" comment was unwelcome to Schmor since Schmor said nothing about it;
3. given the overall context, while at least the "boobie girl" comment could be seen to be insulting and ought to have known by Edlington to be insulting to Schmor, that did not transform the comments into sexual harassment because:

"...while the remarks may refer to body parts and activities that in other contexts have sexual connotations, there is no suggestion that Ms. Edlington was making any sexual requests or suggestions.  In fact, the evidence is that the "boobie girl" comment began as part of a friendly and innocent conversation about sunbathing.  It was not a conversation about sex or a conversation that was related to either party's sexual interests."

Although concluding that the comments did not constitute sexual harassment, the adjudicator did find that reprisal had occurred because Schmor was sincerely offended by Edlington's comments and believed them to be a human rights issue and since the company had no reasonable explanation for terminating her employment.  The adjudicator was of the view that Schmor's days were numbered once the company's management knew, through her co-worker (who also lost her job) was offended by Edlington's comments. 

In the end, Schmor was awarded $2,340 in lost wages and $2,000 in general damages for the reprisal.

PROBLEMS WITH THE DECISION

Had the adjudicator concluded that Edlington's comments were inappropriate but not of sufficient frequency and severity to create a work environment that undermined Schmor's dignity, I might not have paid much attention to this decision.  (I'm not, of course, saying I would have decided the case that way!)  But, what caused me to pause was the feeling that for some reason the fact two women were involved here played a role in the adjudicator's reasoning, causing an unnecessary muddying of the waters.  The focus here should be on whether the comments or jokes were directed at Schmor,  inappropriately based on her sex and unwelcome.  Why did there have to be an underlying tone to them that suggested Edlington had a sexual interest in her female co-worker?  That's certainly not a requirement in situations involving male to female harassment.  And, the section of the Ontario Code that deals with sexual solicitations or advances relates to persons in the workplace who are in a position of power.  So, my supervisor can't, for example, say he'll give me a raise if I "scratch his back".  But, although Edlington is identified in the decision as Director of Events, there is no other discussion of her role in the workplace to suggest she was in a position of power (another thing I would have liked to see explored more thoroughly).  As a result, there was no need to examine whether Schmor's co-worker had a sexual interest in her in order to conclude harassment on the basis of sex was a possibility.  It's unfortunate, in my view, that the adjudicator here seems to have imported these additional requirements in a situation involving alleged female to female harassment.

I also have difficulty with the adjudicator's view that Edlington ought to have known the "boobie girl" comment was unwelcome to Schmor because third parties -- customers -- were involved.   While making the comment in front of customers certainly exacerbated the impact of those comments on Schmor, why would the comments be any more welcome if only said in front of other employees or just Schmor herself?  And, why did the adjudicator discount the fact that Schmor began keeping her distance from Edlington after the "boobie girl" comment was made?  Why was that not a sufficient sign of unwelcomeness?  Now, I'm perfectly aware that not every detail of a hearing lands in the written reasons for decision but I just find that this case raises a lot more questions for me than it answers.

As for the conclusion on the reprisal, I have less of a problem with it but think that this decision imports a new twist in the law on reprisal than existed previously.  The reprisal section in Ontario's legislation that applies to this case is section 8.  That section would, for example, prohibit an employer from taking retaliatory action against any employee who "has a right to claim and enforce his or her rights" or "to institute and participate in proceedings" under Ontario's Code.  In the usual situation, you have an employee who has made objection to behaviour in the workplace (either verbally or otherwise) or who has proceeded to contact the local human rights commission or who even files a complaint.  In response, employer retaliates by disciplining or firing the employee (or threatening to).  So, there is an established connection between the employee exercising his or her rights under the Code and the employer's negative reaction to the employee.  In this situation, Schmor never vocalized her concerns about Edlington's comments either to Edlington or her superiors.  Moreover, Schmor never asked the co-worker who eventually did complain about the "boobie girl" comment to company management to speak to management on her behalf.  In addition, prior to losing her job Schmor had not taken any action under the Code against her employer.  In effect, then, the adjudicator determined that the employee who was subjected to the inappropriate comments needed only to show she had a right to make a claim under the Code but did not have to be the one to take specific steps to enforce her rights under the Code for the reprisal section to be triggered when management ultimately decided to let her go.  

WHAT TO TAKE FROM THIS CASE:

My general view about the Schmor decision is that employers should to be careful about placing too much emphasis on what the adjudicator said needed to be shown for harassment to be found under these circumstances.  Instead, keep in mind the tried and true principles noted below.  Time will tell how other adjudicators respond to what was said in Schmor and I'd recommend a wait-and-see approach on that front.  Also, make sure you understand the law on reprisal.  Here are my specific thoughts on what to take from this case:

1.     Avoid adopting narrow definitions of sexual harassment or harassment based on sex in your workplace.  Remember that harassment on the basis of sex is not necessarily sexual in nature.  In other words, comments made about a person because they are a woman but which do not have as their basis a sexual solicitation or advance can still be found to be harassment under human rights legislation.  (Repeatedly calling a woman a "fat cow" isn't sexual but sure as heck could still be sex harassment).  And, don't get confused just because the people involved happen to be of the same sex.  Comments that are made between people of the same sex do not require a sexual component to them for sexual harassment to be found.  If inappropriate comments are being made and they are rude, crude and connected to a person's sex, put a stop to them.  They have no place in the workplace.

2.    Remember that reprisal is a separate and distinct form of discrimination under human rights law.  This means that even if a complainant fails in their main complaint to a human rights commission (such as was the case here), an employer can still be found liable for retaliating against them for personally exercising their human rights or, as in this case, if someone else exercises those rights for them.  What the adjudicator got right here is the notion that human rights statutes are intended to protect everyone who chooses to exercise their rights.  And, the reference here is to the right to complain.  Not the right to make a successful complaint. 

3.    If you find out about conduct in the workplace that even has a sniff of a human rights-related component to it, do not take adverse action against any employee who is complaining or may complain about that conduct unless you are prepared to prove that there is absolutely no connection between the action you take against that employee and the human rights issue.  And, in terms of proof you want it to be clear and convincing so that no argument can be made that the human rights issue played any role in your decision (to terminate, discipline, give a bad performance appraisal, etc.).  That's where the company here went wrong.  It was a bad decision on the employer's part to fire Schmor without the ability to show no retaliation connection.  That left the adjudicator an opening to infer a connection, find liability and render a damage award.  Often, it is a far better approach to put the adverse action on hold until the human rights issue is resolved one way or the other and you can get your ducks-in-a-row to prove no reprisal.

 

 

 

 

 

The danger of complacency: why regular harassment prevention training should be a no-brainer

After letting my blog take a back seat to the flurry of investigation and training work that's been requested of me since mid-April, I'm finally ready to get back to writing!  Truly thankful for the work but boy has it been busy!

For today's post I'm actually reflecting back on my recent investigations to discuss why it is so important for employers and their managers and supervisors to refrain from getting too comfortable with the way things appear to be going in their workplaces. 

I was recently called into a medium-sized workplace to investigate complaints of harassment that had been filed against an employee.  This workplace had in place a Respectful Workplace Policy that  prohibited discrimination, human rights-based harassment and personal harassment.  One of the questions I always ask when I interview employees and management involved either directly or indirectly in allegations of workplace harassment is whether they were aware of their company's policy and, if so, whether they had received training on the policy.  If I'm speaking with someone who has supervisory responsibilities, I will also ask whether they had ever received training on the very specific responsibilities of management to prevent and appropriately react to complaints of harassment.  And so, I asked these same questions in this most recent investigation.  Here are the responses I received:

• some of the employees had a vague idea that their workplace had a Respectful Workplace Policy but they had no idea what it said and had never received any training on the Policy.  Moreover, they had no idea how to go about filing a complaint under the Policy or otherwise having any concerns they might have about harassment addressed by their workplace;
• most of the managers knew about the Policy but the line managers had never received any training on the Policy.  Most of the managers did not have a clear idea as to the process mandated by their company for raising and addressing complaints of harassment. 
• the key line manager (the one who had direct authority over the employee accused of harassment) only had a vague understanding of his legal responsibilities as a supervisor to respond to and effectively address concerns about potentially harassing behavior in the workplace.  In response to the question of whether he had ever received any training specific to his legal responsibilities as a member of management, he indicated that training opportunities had been offered, on a voluntary basis, but he had never signed up to attend.  He had never been required to take such training by his employer.  More importantly from his perspective, though, was the fact that it never occurred to him that he needed such training until these complaints surfaced.  There had never been a complaint of harassment filed in his workplace before and he said it was such a great place to work he never thought he had to worry about harassment ever occurring there.

I'd like to say these types of responses to my questions were rare, but, unfortunately, I can't.  In fact, these answers are quite typical.  I have, quite honestly, yet to come into a workplace to conduct an investigation and found that there exists a regular and consistent education program to train employees about their anti-harassment/anti-discrimination policies.  Needless to say I think there's a pretty strong correlation between the absence of this type of training and the subsequent need to call me in to investigate formal complaints of harassment.

While a good many organizations I come into do have some basic training for their managers on their general human rights law obligations, these training courses are usually very rudimentary in nature.  Certainly, very few managers I've spoken to during an investigation disclose to me that they have anything but an extremely general understanding of what they are legally responsible to do if they learn about an issue of harassment in their workplaces.  And, often their understanding is limited to human rights-based harassment.  Even fewer know about personal harassment or they get the two confused.  And, even though these supervisors might have a general understanding of their legal obligation to prevent harassment in the workplace, they more often than not lack insight into how exactly they should go about putting those legal requirements into practical action.

So, why this pattern of a lack of training and education?  Well, I think the response of the manager in my most recent investigation goes to the heart of this -- why spend precious time, energy and money on learning how to prevent harassment in the workplace or on learning how to appropriately address it when it's easier just to believe it's never going to happen in the first place?  Thinking harassment (or at least an allegation of harassment) is never going to occur in your workplace is, well, silly.  I can point to oodles of requests for investigations and reams of legal decisions that suggest otherwise.  

And, thinking those in your workplace will never need training to know how to bring concerns of harassment to the attention of management or how to deal with harassment when it arises is an approach that clearly illustrates what is meant by the phrase "penny-wise and pound foolish."   The amount of time and money dedicated to an effective workplace harassment education and training program pales in comparison to what it will cost to hire someone external to do a proper investigation into a formal harassment complaint -- or, even worse, to hire a lawyer to have to defend you in a legal proceeding before a human rights commission, an arbitrator or the courts.  Complacency has no place here --really, honestly, truly.  Training from my perspective is a 'no-brainer' and a key to employers avoiding liability in the area of workplace harassment (which, as regular readers of this blog will know 'liability avoidance' is my mantra).  Here's what I think employers should be doing:

• train all new employees (whether they are part-timers, full-timers, casual, summer, etc. -- this means everyone who is new to your company) on what your workplace Anti-Harassment or Respectful Workplace Policy says.  Detail how they can help prevent harassment in the workplace.  Explain how they can bring concerns about harassment to the attention of someone in authority;
• on a regular basis (ideally this should be annually), remind all employees about your Policy and what it requires.  If your current employees haven't received training similar to that described above for new employees, make sure they get this training as well;
• all managers and supervisors should be required to attend training which outlines their specific responsibilities to prevent and address harassment in the workplace.  Refresher courses should be implemented at regular intervals;
• upper level executives/business owners should also receive training specific to understanding their role in preventing and addressing harassment. 

So, that's my two cents of advice to address a potential money pit of a problem. 

But what about you?  Does your workplace have regular harassment prevention training in place?  What does that training cover?  As always, I welcome your comments and/or feedback.

 

PBS investigation targets teen sexual harassment at work

Tomorrow (Friday Feb 20), PBS will be airing a special investigation report about the sexual harassment of teens in the workplace (if you click the link you can see and hear a video preview of the special).  Although the report details the stories of young women in the United States, the subject of teen harassment in the workplace is just as topical in Canada. 

According to the PBS site, the report:

"..tracks the journey to justice for teens [like those whose stories are documented in the show] and examines how the issue impacts hundreds of thousands of teenagers across the country -- many of whom don't know how to report workplace abuse, or to even recognize when their bosses cross the line."

While I don't have any statistics in hand to indicate the prevalence of teen sexual harassment in the workplace in Canada, certainly, human rights commissions in this country have it on their radar screen.  The Manitoba Human Rights Commission, for example, has targeted youth for a number of years now by holding annual Youth Conferences designed to ensure youth in Manitoba are adequately educated about what their human rights are and how to go about enforcing them.  Moreover, the Commission has on its website a useful publication entitled "The Rights of Youth: On the Job" which details, among many other issues of importance to youth, how to recognize harassment and what to do if it is being experienced in the workplace.

When drunkenness and sexual harassment allegations collide: making sense of a messy situation

Sometimes there are cases that cross my desk that make me go "hmmmmm....." and make me pause to think about how I might have responded if personally presented with the same scenario.  Chan v. Pryer, a December 2008 decision of the British Columbia Human Rights Tribunal, is one of those cases.

The Facts

Robert Pryer is a lawyer in BC who hired Maggie Chan to do administrative work for him in December 2004.  At the time, she was only 16 years old.  She did some work after school on weekdays but mostly worked on weekends.

Mr. Pryer had two adjoining offices and worked on a floor in an office building that had 54 shared offices.  As his office was near the kitchen and photocopier for the floor, it was an area where people congregated.  

On December 29, 2006, when Ms. Chan would have presumably been 18 years old, she was called into work at 4pm.  It was the last day of work before the New Years' long weekend.  Due to the time of year, Mr. Pryer had received a lot of alcohol as gifts.  There was socializing going on, with people stopping by Mr. Pryer's office and sharing in some drinks.  By 6pm all of Mr. Pryer's employees, except Ms. Chan, had left.  She remained behind to socialize with Mr. Pryer and share in his alcohol, having completed her work by that time.

Unfortunately, Mr. Pryer and Ms. Chan enjoyed sharing the alcohol a bit too much.  Mr. Pryer was also an alcoholic.  They both proceeded to get very drunk.  At one point, Ms. Chan blacked out and drifted in and out of consciousness.  Both she and Mr. Pryer had little to no memory of many things that occurred that evening.

Ms. Chan did recall, at one point, lying in the hallway and Mr. Pryer asking if he could lie down beside her.  She also recalled her boss running his hands up and down her legs.  Although she wanted to get up, she couldn't.  Eventually, the two of them left together in a taxi.  She said that during the ride, Mr. Pryer put his hand under her shirt and touched her breast.

When Ms. Chan got out of the taxi, around 11:30 pm, she called her friend, Kevin Leung.  He testified at the hearing that Ms. Chan was "really drunk" and she told him that her boss had "felt her up."  A few days later when she called him upset and crying, she asked Mr. Leung if he remembered what she had told him about the night of December 29.   He told her that he did.  Ms. Chan than stated that what she had told him had occurred, that she was having problems handling it and that she wanted to file a human rights complaint.

Another friend of Ms. Chan's, Anna Knowles, testified that a few days after December 29, Ms. Chan told her what had happened with Mr. Pryer.

Ms. Chan never returned to work.  She ultimately filed a human rights complaint with the BC Human Rights Tribunal alleging sexual harassment against her employer.

The Boss' Response

 

Mr. Pryer's response to Ms. Chan's complaint was multi-fold.  First, he said that he drank so much on December 29 that he had no memory of what occurred over a period of several hours.  But, he contended that he did nothing inappropriate.  Second, he questioned the reliability of Ms. Chan's memory given her level of inebriation.  Third, he took the position that whatever occurred that evening was not work-related.

The Tribunal's Decision

Ms. Chan's complaint was ultimately dismissed by the Tribunal for insufficient evidence.  The adjudicator came to this conclusion based on the following:

• Ms. Chan's evidence was unreliable due to her own admission about the amount of alcohol she had drunk that evening and that she was in and out of consciousness;
• what took place between Ms. Chan and Mr. Pryer on December 29 was not "regarding employment," an essential element to find that Mr. Pryer, the employer, had breached the human rights law obligations owed to his employee.  Instead, the adjudicator concluded that during the period of time Mr. Pryer and Ms. Chan were drinking and socializing, their interaction was no longer that of employer-employee.  In coming to this determination, the adjudicator pointed out that:       
  • Ms. Chan had finished her work by the time she and Mr. Pryer began drinking;
  • she remained behind while all other employees left; 
  • she stayed because Mr. Pryer had alcohol.        
• the only evidence to establish that Mr. Pryer's alleged inappropriate conduct was unwelcome (another necessary element to prove sexual harassment) was from Ms. Chan whose memory of the evening was spotty at best.

 

Thoughts on the Case

So, are you getting that "hmmmm...." feeling too?  

This is a messy situation to put it mildly.  Imagine if you were the in-house investigator called in to investigate a situation like this in your workplace.  How would you deal with the evidence?

You have a very small workplace.  Headed by a lawyer.  You have a young administrative assistant.  You add in some alcohol.  Although not mentioned in the decision, there's potentially some underage drinking here given that my recollection is that BC's legal drinking age is 19.  Socializing and drinking occurs in the physical workplace.  An incident of inappropriate touching is alleged to have occurred.  Then, external to the workplace, in the cab ride home, another incident of inappropriate touching is said to have occurred.  Throw the male friend into the mix.  He says she called him the night this all occurred and said her boss "felt her up."  A few days later, she calls crying.  Is it regret talking now?  Or the fact she can't remember everything that happened?  Or did something inappropriate really occur?

Do you think there was enough evidence to prove sexual harassment related to employment here?  Or, are you completely onside with the adjudicator's decision?  Are you going "hmmm...?"  

Bullying & harassment tackled by new website

Researchers at the University of New Brunswick have launched a new website designed to help employers and employees address bullying and harassment in the workplace.  Entitled Towards a Respectful Workplace, the website contains information and tools to help increase awareness about the destructive impact of disrepectful conduct in the workplace with the goal of eliminating it.  Of particular interest are the guides developed specifically for employees and employers (referred to on the website as organizations) which are described by the authors as follows:

"The Employee's Guide reflects what targets of workplace bullying and harassment have told us about their experience, and sets out what employees can do, individually and collectively, when they become aware of bullying issues in their workplace. It will also be of value to co-workers, friends, and family members of people who are being targeted at work. These are often first people targets tell or ask for advice or support."

"The Organizations' Guide will be of interest to chief executive officers and chief administrative officers, managers, human resources personnel; respectful workplace, joint health and safety, and wellness committees; owners/operators; employee and family assistance programs, unions, and owner/operators of small to mid-sized enterprises. While this section highlights some of the major components of a workplace bullying reduction plan, it is a template. Each workplace will need to customize the approach to fit its own circumstances, with the help of appropriate in-house or external expertise."

From Russia, with love: Sexual harassment the key to higher birth rate?!

There are times when all of us, I think, take the country that we live in for granted.  I know I do. But, then comes along a story that makes you shake your head in complete disbelief and prompts the realization of how fortunate we truly are.  Case in point is this story from the UK Telegraph which details the story of a young, female advertising executive in Russia who brought a claim of sexual harassment against her employer.  The woman was apparently locked out of her office when she refused to have sex with her boss.  The judge dismissed her case, but not for lack of evidence.  No, instead, he purportedly gave the employer a pass because he was actually doing the country a service, ruling "if we had no sexual harassment we would have no children." While I've heard a lot of creative defenses to claims of sexual harassment before, that one, has to take the cake.

Unfortunately, for women in Russia, work and sexual harassment go hand-in-hand, or at least that appears to be the case based on the statistics set out in the UK Telegraph article.  I certainly have to hand it to the young woman at the centre of this story.  Coming forward with allegations of sexual harassment is a difficult task in and of itself.  But, in light of the fact that sexual harassment appears to be very much the norm in the Russian workplace coupled with the fact that only two women since the fall of the Soviet Union have actually succeeded in claims of sexual harassment in the Russian human rights system, I cannot imagine how hard it was for her to do what she did.  And then, at the end of the day to be told what she experienced was 'ok' because her employer's actions were supportive of the Russian birth rate, I'm almost rendered speechless (well......almost).

While I know, based on the work that I do, that sexual harassment is still alive and well in the Canadian workplace, we are very fortunate to have strong anti-sexual harassment laws and a court system and culture that, overall, looks down upon this kind of behaviour by employers or anyone else in the workplace. 

RCMP seeking review of Tribunal decision in cadet case

Not surprisingly, as noted by this Canadian Press news release, the RCMP have filed an application for judicial review of the recent decision by the Canadian Human Rights Tribunal that found the RCMP liable for discrimination and harassment against a cadet.  I discussed the Tribunal's decision, particularly the significant damage award, here.

Turfed RCMP cadet succeeds in discrimination complaint

As reported by a number of Canadian news outlets last week, the beleaguered RCMP are facing yet another enormous damage award after the Canadian Human Rights Tribunal concluded a former cadet had been subjected to discrimination and harassment during training.

Ali Tahmourpour is a Muslim Canadian who was born in Iran.  He commenced training with the RCMP in July 1999 and was dropped from the program four months later before his training was completed.  Mr. Tahmourpour alleged in his complaint that during training he faced systemic discrimination and incidents of harassment on the basis of race, religion and national or ethnic origin and he further alleged that his training contract was terminated for discriminatory reasons.  In particular, he contended that:

• he was subjected to discriminatory remarks, hostile treatment and verbal abuse by instructors at the training academy;
• his performance at the academy was improperly evaluated;
• his training contract was terminated based on false pretences;
• he was improperly designated as being ineligible for re-enrolment in the training program.

While the evidence that came out at the hearing did raise some questions about Mr. Tahmourpour's ultimate ability to do police work (concerns were raised as to his communication skills, judgment and ability to solve problems), the adjudicator concluded that his performance was more likely than not affected by discrimination and harassment.  She stated:

"...in a training environment where derogatory comments about race are condoned and directed at people like Mr. Tahmourpour, where evaluations are inaccurate and improper, and where instructors take pride in being 'politically incorrect', it is difficult for someone like Mr. Tahmourpour to develop and demonstrate his skills....I find it reasonable to infer that such conditions erode one's confidence and ability to perform well."

Further, the adjudicator concluded that the recommendation and decision to terminate Mr. Tahmourpour's contract were based on a discriminatory assessments of his skills.  Ultimately, as a result of her findings the adjudicator determined that Mr. Tahmourpour ought to be offered an opportunity to re-enrol in the next available RCMP cadet training program.

Factually, this isn't a terribly complicated case.   The damage award, however, is and provides yet another example of the escalating risk employers face if they permit discrimination and harassment to occur in the workplace.  Remember that Mr. Tahmourpour was removed from the training program in 1999 and so the damage award reflects a 9 year time span [although he filed his complaint in 2001, as a result of various appeals Mr. Tahmourpour's complaint was not actually heard by the Tribunal until late 2007).  Here, in addition to requiring the RCMP to permit the complainant to re-take his training, the adjudicator made the following orders:

• the RCMP are to pay the complainant:
  • compensation for salary and benefits he lost for the first 2 years plus 12 weeks of work as an RCMP officer after graduating from training, discounted by 8% (to reflect the attrition rate of cadets and regular members of the Force);
  • the difference between the average full-time industrial wage in Canada for persons his age, and the salary that he would have earned as an RCMP officer until such time as the complainant accepts or rejects an offer of re-enrolment in the training program;
  • the average amount of overtime paid to other constables who graduated from training in 1999, unless otherwise agreed upon by the parties, discounted by 8%;
  • compensation (incorporated in the above) that reflects a promotion to Corporal after 7 years (the average time it took a Constable to be promoted to that rank);
  • $9,000 for pain and suffering;
  • $12,000 in special compensation for the wilful and reckless discriminatory remarks to and harassment of the complainant by a particular Corporal at the training depot;
  • $9,500 for expenses incurred;
  • compensation for legal expenses incurred;
  • interest on all compensation awarded.
• the RCMP are also required to:
  • establish a policy and set of procedures to enable cadets to address harassment and discrimination at the training depot;
  • deliver mandatory diversity/cultural sensitivity training to cadets and all personnel at the training depot;
  • establish an advisory committee or multi-culturalism officer to make recommendations to the commanding officer at the depot with regard to the prevention of discrimination and promotion of respect and tolerance for diversity.

While there are conflicting media reports, it would appear that Mr. Tahmourpour's damage award may add up to the $500,000 mark and the addition of legal fees will take the total amount payable by the RCMP to upwards of $1 million.

Being a UFC fan (for those unaware that refers to the Ultimate Fighting Championship a mixed martial arts sport), I know that the fighters always want to win by submission or knock-out because otherwise they leave the fight in the hands of the judges and lose control of the outcome.  Well, that goes double for employers who fail to take control of discriminatory and harassing conduct in their workplaces.  Leave your workplace in the hands of a human rights adjudicator and you could be feeling a bit pummelled, like I'm sure the RCMP are feeling right now.

Further reading:

Ali Tahmourpour v. RCMP, 2008 CHRT 10 (65 pages)

"RCMP faces $1M payout on discrimination case", CBC

"Ex-RCMP cadet wins discrimination case", Globe and Mail