Author: Daniel A. Lublin
Workplace discrimination and harassment may often be in the eyes of the beholder
Canadian employers have historically taken an ignorant view of human rights tribunals and their often remarkable decisions. But that may be about to change. Because of sweeping changes to human rights legislation and left-leaning adjudicators directed to interpret remedial legislation, such as employment standards and human rights laws, in a broad and inclusive manner, employers should not be so unconcerned. Here are two cases that illustrate the ever-expanding view of liability for both employers and employees.
Michele Schmor’s legal odyssey began with a seasonal job working in retail for Stonechurch Vineyards, a Niagara-on-the-Lake winery. Soon after returning from a vacation, she was asked by a co-worker, Lisa Edlington, if she had sunbathed topless. When Schmor said that she did, but only in private places, Edlington remarked that Schmor was a “boobie” girl, joking about this several times in front of other employees and customers. According to Schmor, shortly after, Edlington suggested that she climb the pole in front of the store and slide down it like a stripper.
Although Schmor said this made her uncomfortable and embarrassed, she did not express her concerns to Edlington or mention the matter to anyone in management. Instead, she complained to several other employees, one of whom promptly reported the incidents to the company.
Shortly after learning that Schmor was uncomfortable with Edlington’s remarks, Stonechurch stopped scheduling her shifts. Without work for several weeks, Schmor emailed the company stating she would like to continue working but was tersely told by a company representative that she would not be called back for the summer and that she wouldn’t be given a reason why.
Schmor complained to the Ontario Human Rights Tribunal that she had been sexually harassed and then fired in reprisal. In considering her case, adjudicator Lorne Slotnick found that Edlington’s comments did not amount to sexual harassment, as they lacked an element of harassment. However, not having offered a reasonable explanation for Schmor’s termination, Stonechurch was ruled to have fired her in reprisal for having complained. Once management knew Schnor was offended by the comments, her days were numbered, Mr. Slotnick wrote in his recent decision.
Similarly, when a computer audit revealed that 14-year company veteran Gregory Backman had been surfing pornographic web sites at work for more than 10 hours in one month, he was immediately shown the door by his employer, Maritime Paper Products Ltd.
In rejecting Backman’s claim that he had been wrongfully dismissed, a New Brunswick judge recently found that Backman’s conduct was tantamount to sexual harassment because the female IT manager who performed the audit on his work computer found the websites he visited “offensive.”
The message from these cases is clear: workplace discrimination and harassment may often be in the eyes of the beholder. With varying views of the types of conduct and comments that will attract liability, both employers and employees should consider the following advice:
- report incidents of harassment when they first occur rather than allowing them to fester;
- ensure a zero tolerance policy for jokes based on gender or sex; and
- bulletproof existing human resources policies.