Common Type of Workplace Harassment
Office harassment are unwelcome verbal or physical behavior. Not all unpleasant behavior qualifies as harassment. Here are the 5 most common types of workplace harassment:
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Sexual Orientation and Gender Identity Discrimination
Sexual Harassment in the Workplace
Unwelcome sexual advances and inappropriate sexual or gender-related remarks between employees happen, and although sexual harassment towards women is most common, they are no longer the only victims of sexual harassment nowadays. Still, despite the #MeToo movement, many employees are reluctant to report sexual harassment in the office in the fear of getting terminated in retaliation.
Disability harassment refers to unfavorable treatment or harassment of employees with a physical or mental disadvantage. Using slurs, making inappropriate jokes or excluding employees from certain work-related functions, are some of the examples of disability harassment, but it can be more subtle. For instance, a manager may pass up an employee in a wheelchair for a promotion based on the incorrect assumption that they can’t handle the task at hand.
Another example is that an employee that has been injured in an accident could be laid off by the employer or being terminated with the argument that the mere fact that the employee being disable is a frustration of contract (i.e. failure to perform core job functions) that warrants a termination for cause. However, do note that the employer has a duty to accommodate the employee with a disability to the point of undue hardship. In addition, under Ontario Regulation 288/01 – Termination and Severance of Employment (made pursuant to the Employment Standards Act), even if an employee has been terminated due to frustration of contract because of illness or long term disability, ESA minimum notice and severance pay has to be satisfied.
What is a core job function and what is undue hardship is a fact driven question, but can be demonstrated by the example below.
Sandy the Secretary was involved in a car accident and has to be confined in a wheelchair. Sandy’s core work functions were to answer phone calls, book appointments for Tom the employer, and to answer company emails on behalf of Tom. The only accommodation needed is to give Sandy a work computer and a call forwarding protocol, and video camera so that she could work from home remotely, answer phone calls, and emails and to have zoom meeting with Tom. But Tom terminated Sandy without any investigation into accommodation options. Tom has failed to discharge his duty to investigate and his duty to accommodate in this case.
You can’t change what’s in peoples’ hearts, but that doesn’t mean that racial harassment and discrimination are acceptable behaviour. The test of racial discrimination is one of objective standard, and the test is whether an objective person with the same culture background conclude that the remark was discriminatory in nature. So, even if it was considered as an innocent joke by the harasser, if it will be perceived objectively as purposefully demeaning, or even threatening to the joke’s recipient, it will be deemed to be a racially discriminatory remark. Displaying discriminatory symbols on or offline, mocking a person’s accent, making unwelcome comments about a person’s race, telling derogatory jokes, using racial slurs and expressing general intolerance toward any particular race group are all common displays of racial discrimination.
You can’t change what’s in peoples’ hearts, yes, but as an employer you have an affirmative duty to create a healthy and safe working environment mandated by the Occupational Health and Safety Act, and as such you MUST properly investigate into complaints of racial discrimination and make appropriate accommodation and corrective measure to make sure that it doesn’t happen again, and most important to held the harasser accountable for what he or she has done.
Sexual Orientation and Gender Identity Discrimination
Sexual orientation and gender identity harassment is more common than you thought, and it involves derogatory, offensive or demeaning remarks based on a person’s sexual orientation or gender identity, including transgender status. “Sexual orientation" refers to whether or not a person is homosexual (gay), heterosexual (straight), or bisexual, while "gender identity" refers to a person's self-identification as a man or a woman, as opposed to one's biological sex at birth.
Much like sexual harassment, the victim and the harasser in these instances can be of any gender or orientation.
Like racial discrimination, age discrimination is vastly underreported with employees neglecting to file a claim due to fear of termination in retaliation. Unfortunately, forced resignation, forced retirement, unfair redundancy are fairly commonplace in Ontario.
A forced resignation occurs when an employer puts pressure (directly or indirectly) on an employee to resign. A forced retirement happens when an employer micromanage and picks on an employee, requires the employee and only him or her to document everything, keeps blaming the employee to make minor mistakes and forgetting things due to old age. If an employer changes the terms of the employment contract in order to force the employee to resign, then that would deemed a constructive dismissal.
Unfair redundancy occurs when your employer has not followed a fair redundancy process. Employers should always speak to you directly about why you have been selected and look at any alternatives to redundancy, such as a reassignment to a different post. In addition your employer must not have an unfair reason for singling you out for redundancy, for example: Age -- based on the incorrect stereotypical assumption that older people are less productive and less efficient than younger workers.
Under the Human Rights Code, age based mandatory retirement programs for people aged 65 and older is illegal. However, employers may be able to defend mandatory retirement programs on the basis that they are bona fide occupational requirements (BFOR). In order to meet this test, employers must show that their mandatory retirement program (1) was developed in good faith, (2) is rationally connected to the nature of the work, and (3) that it would be impossible to develop a non-age based program without undue hardship, by showing that the objectives of its mandatory retirement program could not be achieved through individual testing and assessment of employees.
While most age based discrimination cases deal with mandatory retirement programs, there are some outliers. For instance, Kearns v. Dickson Trucking Ltd., (1988), 10 C.H.R.R. D/5700 (Can. Trib.)., T. D. 17/ 88, is one such example. The evidence in that case was overwhelming and there was no other reasonable explanation for the termination other than aged discrimination. The organization has no mandatory retirement program. The complainant, a 69-year-old salesman, was the best in the organization and there were no substantiated complaints at any time about his performance. He was terminated on the basis of “a lack of potential in the area serviced by him” in the letter of termination. However, evidence showed that the position was not declared redundant but rather was filled by a younger person. Mr. Kearns was awarded damages for lost wages and for hurt feelings and self-respect.
Click here to learn more about wrongful dismissal. Click here to learn more about constructive dismissal.
Click here to learn where to sue for a case of wrongful dismissal, and a case of office harassment and discrimination. Click here to learn where to sue for a case of constructive dismissal, and a case of office harassment and discrimination.
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