Standards of appropriate workplace behaviour have rapidly changed over the last few years, and conduct that was once deemed acceptable is no longer tolerated in the workplace. But as the following arbitration decision demonstrates, one fundamental requirement still remains: the need to demonstrate a prima facie case of discrimination or harassment before the obligation to investigate a complaint is triggered.
In the recent past there have been several class actions involving individuals who have experienced sex-based discrimination, sexual harassment, and sexual abuse in workplaces and institutions. But what about the type of harassment that we most often see as workplace investigators – bullying, intimidation and abuse of one’s authority that does not target someone based on a protected ground of discrimination? Can there be a class action united for those who experience of this type of behaviour? Possibly.
Despite this opening sentence in her decision, Tribunal Chair Juricevic found that the complainant’s allegations of sexual harassment and discrimination were not substantiated.
As a workplace investigator, I am sensitive to the fact that conversations around #MeToo in the workplace have been an evolution; people are not always sure about “where the line is” when assessing whether conduct in the workplace amounts to sexual harassment. The British Columbia Human Rights Tribunal recently chimed into this discussion. The decision¹ provides a detailed refresher on the legal test for claims of sexual harassment and draws a line in the sand regarding what is (or is not) considered sexual harassment.
In Ontario, harassment is defined in both the Human Rights Code and the Occupational Health and Safety Act as a course of vexatious comment or conduct that is known or ought to be known to be unwelcome. The term “course of conduct” gives the impression that harassment needs to be made up of multiple incidents. In fact, in some circumstances one serious incident can constitute harassment in the workplace.