“How was I to know they were offended by my jokes? They never told me they were uncomfortable.”

Jokes between colleagues can be an important contributor to positive workplace culture. Unfortunately, some employees are subjected to jokes and teasing that is offensive or demeaning. It is common for employees in this circumstance to tolerate the jokes for a time, hoping that the jokester will pick up on subtle cues that their attempt at humour is not welcome.

When the joking does not stop, and the employee eventually files a complaint alleging harassment, the jokester respondent may be taken by surprise.

Respondents accused of “harassment-by-joke” often say their teasing was just affectionate or consensual workplace banter, not meant to offend. Oftentimes these respondents claim there were no signs that the complainant was uncomfortable, and argue that it is unfair to make a finding of harassment where the complainant did not tell the respondent that the jokes were unwelcome.

However, Canadian case law has long recognized that it is not simply the jokester’s intent that determines whether teasing or jokes amount to harassment. Regardless of the impact the jokester meant to have, if their jokes are potentially offensive or demeaning (to the complainant, and objectively), and are reasonably interpreted as such by the target, the jokes may amount to harassment.

Further, a finding of harassment typically cannot be avoided just because the complainant did not expressly tell the respondent that their jokes were unwelcome. Legal decisionmakers assessing such cases often find that there were other cues, such as body language, that a respondent should have recognized as a sign that their jokes might not be appreciated.

But are such cues a requirement to a finding of harassment-by-joke? As investigators, do we always have to find there was some sort of indicator from the complainant that the jokes were unwelcome, before we can conclude the jokes amounted to harassment?

That the answer to this question is “no,”  has been consistently confirmed in the jurisprudence. That is, in some cases, harassment can be found in the absence of any cues that jokes were unwelcome. Let’s review the most recent reminder of this, stated as obiter dicta in the decision Health Sciences Association of Alberta v. Alberta Health Services.¹

The facts

The grievor and the complainant were respiratory therapists in a hospital. The complainant, an Asian male, alleged the grievor subjected him to repeated racist and sexually harassing comments and jokes. The hospital investigated the complaint, concluded the alleged events occurred, and dismissed the grievor. She grieved her dismissal.

The jokes that formed the basis for the grievor’s dismissal included: making repeated comments about a very small pen the complainant used, and his small lunch bag, which jokes implied the complainant had a small penis (i.e., saying “the Asian man is using a very small pen” while giving colleagues a meaningful look);  routinely referring to the complainant as the “Asian sensation” or “the Asian”; and making regular jokes in front of others about the complainant being “ESL,” in that English was not his first language.

At arbitration, the grievor asserted that her jokes were either misunderstood by the complainant, or were shared jokes in which he participated. She acknowledged commenting on the complainant’s small pen and lunch bag, but said she did not imply any connection to the size of his penis. She agreed she called him the “Asian sensation” and “the Asian,” but claimed these references were complimentary. She said she thought it was acceptable to make ESL jokes because the complainant also joked about his language skills.

The grievor also asserted that the complainant never indicated any discomfort with her jokes.

Dismissal upheld

As in all workplace investigations and arbitrations of dismissal grievances, the arbitration board first had to determine what happened. The board then had to determine whether the proven conduct amounted to harassment. These determinations are referred to in the book, Human Resources Guide to  Investigations,² written by two partners of our firm, as the “What?” and the “So what?” of a harassment investigation.

Addressing the “what,” the board held that it was not believable that the grievor would make repeated comments about the small pen and lunch bag for weeks without sexual implication, and found that it was a running joke with sexual innuendo. The board also accepted that, though the nicknames and ESL jokes may have started out as mutual banter, the complainant’s later behaviour – such as leaving the room when the grievor entered – indicated that he did not welcome the grievor’s continued jokes.

Having determined the “what” of the grievor’s conduct, the board then considered the “so what.” The board found the grievor’s repeated discriminatory teasing amounted to harassment, in that it was a vexatious course of conduct she ought to have known, by way of the complainant’s response to her jokes, was unwelcome.

The board then made the statements that ground the theme of this post: that the complainant’s jokes, because they were repeated, demeaning, and discriminatory, would have amounted to harassment regardless of any cues from the complainant. The board stated:

However, even if the complainant had done nothing, we still would have found that the conduct was harassing, unwelcome and objectively serious because she should have known this type of conduct is inherently unwelcome. The Grievor’s conduct has no place in any modern workplace, let alone at a children’s hospital by a health professional.³

The board went on to say,

…there is no circumstance today in which repeated, daily, targeted and demeaning “jokes” about race and sexual innuendo connected to race are ever acceptable in a modern workplace.⁴

…

It was not the complainant’s duty to tell the Grievor that she should not compare his penis size and race to the size of his pen or let her know that daily demeaning comments about his language skills were unwelcome. The severity and frequency of the comments were inherently unwelcome.⁵

Ultimately, the board upheld the grievor’s dismissal. It held that despite the grievor’s long, discipline-free tenure, her continued minimization of her own conduct and its impact on the complainant were markers of low rehabilitative potential.

Tips for employers

A key strategy to encourage employees to conduct themselves appropriately at work is to be explicit about what conduct is expected, and what conduct is prohibited. Incorporating the following in your organization’s anti-harassment policies and training can help employees avoid jokes that amount to harassment:

• • Clearly state that jokes and teasing based on personal characteristics, such as race, sex, gender, and gender expression, can amount to harassment.
  • Provide examples of conduct, including jokes and teasing, that can constitute harassment.
  • Advise employees that the onus is on them to look for cues that confirm their jokes are welcome. Explain that in the absence of such cues, they must stop making those jokes.
  • Provide examples of the types of verbal and non-verbal cues people give when they find conduct offensive, but want to convey that without openly saying it.
  • Provide several sample scenarios of harassment. Consider including a scenario in which a jokester colleague persists in the face of cues that should have indicated to them that their jokes were not welcome.
  • Define (and prohibit) microaggressions. Teach employees about the microaggressions that are typically experienced in the workplace, and the stereotypes that most commonly underlie those microaggressions. You can read more about microaggressions here.
  • Include anti-harassment discussion and training as a regular occurrence in the workplace. Repetition is fundamental to adult learning.

Remember, in-person training by facilitators with an expertise in harassment and discrimination proves to be more impactful than online modules or assigned reading. Click here to learn more about our own suite of Respectful Workplace Training modules offered by the team of professional trainers here at Rubin Thomlinson. Our training sessions are designed to be comprehensive, engaging, and can be customized to fit within your organization’s specific policies or challenges.

¹ 2023 CanLII 37831 (AB GAA) [Alberta Health Services].

² Janice Rubin and Christine Thomlinson, Human Resources Guide to Workplace Investigations, Second Edition (Canada: Carswell, 2018).

³ Alberta Health Services, supra, at para. 59.

⁴ Alberta Health Services, supra, at para. 61.

⁵ Ibid.

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