Office Harassment is the improper conduct by an individual, that is directed at and offensive to another individual in the workplace, and that the individual knew or ought reasonably to have known would cause offence or harm.. Discrimination is the unfair or prejudicial treatment of people and groups based on characteristics or group association.
Office Harassment vs Discrimination – Is there a distinction?
In common day English usage, these two terms are being used interchangeably. But these terms mean something very different in Human Rights laws in Ontario.
Harassment is defined as improper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat.
Discrimination, on the other hand, is the unfair or prejudicial treatment of people and groups based on characteristics or group association. The Human Rights Code of Ontario (the Code) protects people from discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
Do All Form of Harassment Qualifies as Discrimination Protected by the Human Rights Code?
Unfortunately, no. Even if it is an improper act or an act of harassment if viewed objectively, it MAY NOT be qualified as an act of discrimination caught by the Human Rights Code if it’s an improper act against a particular individual due to a personal grudge, or other personal reasons, but is unrelated to any of the protected ground caught by the Code.
In Dabic v. Windsor Police Service, 2010 HRTO 1994 (CanLII), the Human Rights Tribunal of Ontario, has stated that for a case to survive the summary hearing or internal case review stage, the key issue is whether or not there's a reasonable prospect that the evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
The HRTO affirmed it's position yet again in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (CanLII), that: The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.
In other words, when there is no reasonable prospect that any evidence the applicant has or that is reasonably available to him or her could allow the applicant to prove his or her case on a balance of probabilities, the application will be dismissed.
For instance, Peter was picked on by his employer, Tom, micromanaged, belittled, got yelled at because he wanted to squeeze him out and pressure him to resign, so that Tom’s nephew James could replace him. While Peter could have been harassed by Tom, those harassment probably would not be amounted to discrimination protected by the Human Rights Code. Peter might still have a claim of wrongful dismissal against the employer if he was indeed being terminated and replaced by James.
Seema was a hard worker, and got excellent job appraisal, but she had never been offered a promotion, and her boss Tom would tell racial jokes publicly in front of all the employees by mimicking Seema’s Indian accent to ridicule her. Seema's co-worker Sandra witnessed the incidents and was willing to testify on behalf of Seema regarding the racial jokes. In this case, Tom has violated the Human Rights Code by discriminating against Seema because of race. We call it a “Code Based Violation”. The evidence namely "excellent job appraisal", "lack of promotion", "witness testimonies" shows a reasonable prospect that a link between the event and the alleged prohibited ground can be established. So not only a Code based violation has occurred, but it's also likely that Seema's case going to survive the summary hearing or internal review stage at the HRTO.
Legal Treatment of Harassment vs. Discrimination caught by the Human Rights Code
There is a huge difference in employment law context between harassment and discrimination. First of all, the Human Rights Tribunal of Ontario (HRTO) ONLY entertains claims that are related to the violations of Human Rights Code of Ontario. In other words, if the harassment wasn’t caught by the Human Rights Code, then the HRTO isn’t available to you.
Do note that however, even if the harassment didn’t qualify as a code based violation, you can still file a complaint to the Ministry of Labour – Health and Safety (MOL).
Of course, you can file a claim of wrongful dismissal to the Superior Court or the Small Claims Court if you have been terminated and add human rights violations and/ or harassment as a component in your suite. If the discrimination that you are complained of is not a Code based violation, the discrimination might have to be severe enough to qualify for a constructive dismissal claim for it to be successful.
You can file a complaint to HRTO or MOL while you are still on the job as the claim is available to you as of right, and it’s independent of your employment status. Filing a wrongful dismissal case to Court is only available to you if you have been terminated.
Bear in mind that you have to choose one of the forum, you CANNOT file a complaint based on the same set of facts in more than one forums.
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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