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Bullying, Harassment & Work

Workplace bullying and harassment exists in many forms, including sexual harassment, personal attacks, verbal aggression, and other intimidating or humiliating behaviour.  We briefly discuss sexual harassment below, as well as bullying and harassment generally, along with steps individuals may take to protect their rights and steps employers may take to assure a positive workplace and adequately respond to any complaints or incidents which may arise.

Sexual Harassment

What is Sexual Harassment?

In one of the leading cases on sexual harassment, Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, the Supreme Court of Canada identified three key elements of sexual harassment as it relates to the workplace:

  1. Conduct of a sexual nature, which is gender based,
  2. Conduct that is unwelcome, and
  3. Conduct that detrimentally affects the work environment or leads to adverse job- related consequences.

While women make sexual harassment claims more often than men, sexual harassment can also occur to men.  It can also occur between two people of the same sex.

Sexual harassment includes the obvious types of behavior, such as demanding behavior of a sexual nature. However, it encompasses far more. It includes behavior such as sexual groping, propositions and inappropriate comments.  In order to constitute sexual harassment, the behavior need not be overt. It may be discrete.  It is not necessary that it be solely of a physical nature. It may be verbal, mental or psychological. There is no requirement of an intention to harass.  The conduct need not be directed toward a specific individual. It is sufficient that the offender’s actions create a hostile or poisoned work environment. Sexual harassment is often somewhat persistent or repetitious. At the same time, an overt but isolated incident may suffice to establish harassment.

In order for an employer to be held vicarious liability for sexual-harassment by its employees, the harassment must generally occur “in the course of employment” (Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84).

We have all heard about the complaints of predatory conduct by celebrities, media personalities, politicians and others, and witnessed the take-down of high profile personalities, and the notable exceptions.  The widespread coverage of these cases, and the acknowledgement of the #MeToo movement, has been eye opening for many women who have otherwise tolerated unwanted attention.  This may allow some people to feel more empowered to step forward to tell their stories.   Despite the media attention, however, many complainants remain reluctant to step forward.  This reluctance persists for a number of reasons, including fear of confronting the offender, fear of the impact on the complainant’s job or longer term career prospects, fear of publicity, and fear of the possible impact on one’s family.

Steps to Take if Sexual Harassment is Occurring in Your Workplace:

If you are being sexually harassed at work or by a coworker, here are some steps to take, to protect your rights:

  1. Say “no,” and say it clearly. Let the other person know that what they are doing is not appealing to you.  Ask them to stop. Do so in writing.  This is an important first step toward putting the other person on notice that the conduct is unwelcome, and that it should stop.
  2. Consider complaining. If, even after you have put the other person on notice, the behavior continues, consider complaining to someone in a position of authority or to someone in your employer’s human resource department.  Many employers have specific policies and procedures in place for handling such complaints. If you are unionized, consider talking to your union representative or shop steward. If you experience a negative response or feel you are being retaliated against in any way, document that too.  You may also wish to consider complaining to the British Columbia Human Rights Tribunal. The BC Human Rights Clinic provides free representation to complainants who have cases before the BC Human Rights Tribunal on a province-wide basis.  Be sure to document your complaints, the events, and discussions which occur.
  3. Consider seeking legal representation. If asking the offender to stop and accessing your employer’s internal procedures does not work, consider obtaining legal advice from an experienced employment lawyer retained to act on your behalf. At Inspire Law, we will fight for your rights, and work with you to seek the resolution you desire, whether that is a confidential settlement prior to litigation, or filing a public lawsuit and taking it through to trial in court, if necessary.

Steps for Employers to Take:

If you are an employer, here are some steps to take, to reduce the chance of sexual harassment occurring within your business, and to be in a position to adequately respond to any future complaints:

  1. Develop and implement a policy. Clearly state that bullying and harassment is unacceptable and will not be tolerated. Consider how to encourage complainants to come forward, the procedure for reporting incidents, and the procedure for responding to any complaints, or incidents that may occur.  Consider the procedures for investigating complaints of bullying or harassment. The employer must carefully consider its approach, ensure its process will be documented, and aim to fully address any reports or incidents and to reduce the risk of occurrence of future cases.
  2. Ensure that the policy is properly introduced. Ensure that people are adequately educated about bullying and harassment, including sexual harassment. Ensure that the policy is followed.
  3. Consider obtaining legal advice from an experienced employment lawyer. At Inspire Law, we can assist you in preparing and implementing policies to address issues of bullying and harassment, including sexual harassment, thereby putting you on a strong footing to be able to respond to any allegations that may occur.

If a complaint of sexual harassment is received, an employer should consider the following steps:

  1. Give a warning to the alleged offender, and ask him or her to immediately stop the alleged conduct. Document this. In serious enough cases, a warning may not be required before dismissing the offender.
  2. Investigate the complaint, and follow a fair procedure in doing so. Ensure that you adequately document this. Failure to adequately investigate may not be fatal to the employer’s ability to respond to a wrongful dismissal claim by the offender.
  3. If the conduct was sufficiently serious or repetitive, consider dismissing the offender from his or her employment, for cause.
  4. Consider obtaining legal advice from an experienced employment lawyer retained to act on your behalf. At Inspire Law, we will fight for your rights, and work with you to seek the resolution you desire, whether that is a confidential settlement prior to litigation, or assisting you with litigation, and taking it through to trial in court, if necessary.

Bullying and Harassment

Harassment is not limited to that of a sexual nature. It can extend to other groups, as well, such as the disabled, pregnant women, and those whose racial or religious background puts them in a minority groups.

Workplace harassment of anyone who falls within a protected ground will trigger an employer’s duties under human rights legislation.

In addition, workplace harassment triggers an employer’s duties under the Workers Compensation Act. Part of an employer’s general duty to ensure the health and safety of its workers includes the duty to ensure its employees are not being bullied or harassed, whether they are within a ground protected by human rights legislation or not. Section 115 of the Workers Compensation Act (British Columbia) states that every employer must ensure the health and safety of its workers, and must provide appropriate information, instruction, training and supervision to ensure the health and safety of its workers. In addition, section 116 states that every worker must take reasonable care to protect other workers health and safety.

WorkSafeBC policies define ‘bullying and harassment’ as:

“A worker is bullied and harassed when someone takes an action that he or she knew or reasonably ought to have known would cause that worker to be humiliated or intimidated.” (WorkSafeBC Policy Item D3-115-2 and Policy Item D3-117-2)

If, reporting the incident to the employer does not result in the employer taking reasonable steps to address the incident, the worker can contact WorkSafeBC’s prevention information line, to discuss the incident with a prevention officer. If the matter is still not resolved, a Bullying and Harassment Questionnaire may be submitted.

Employers have a duty to keep their workers safe this type of behavior. Employers also have a duty to conduct a fair investigation, and to avoid pre-determining a matter until the investigation is complete.

In addition to the steps referenced above, WorkSafeBC has said that employers should annually review their harassment and bullying procedures.

Consultations

To schedule a consultation, please contact us.