to address harassment, bullying and discrimination
with Stephen Hammond
Tip #35 — HUMAN RIGHTS AREN'T CONFINED TO A COMMISSION
Managers usually think human rights cases only come from a human rights commission or tribunal. Hence, they tend to think their business is safe if they stay away from obvious human rights travesties like asking an employee for sex or telling an applicant that the company doesn't hire immigrants. But by now, readers of these tips know that workplace human rights issues aren't always obvious. For example, sexual harassment can involve negative attention applied to one predominant gender. Or policies that appear neutral but have a negative impact on certain groups may be referred to as "adverse impact" or systemic discrimination. Hence, employers have to watch words and actions both in and around their workplace more closely than most think. And employers also have to watch where human rights issues may come from.
Years ago, I came across an Ontario Workers' Compensation Board (WCB) appeals case involving a police officer in a Northern Ontario detachment, who made a claim of stress leave and was seeking compensation from the WCB. The case didn't look good for the officer, due to a number of factors. He had a drinking problem and fellow officers responded twice to calls from his home for domestic violence. During one, he threatened to commit suicide with his gun. As well, he was convicted under the Police Services Act for causing damage to his firearm and in another incident he wounded a friend in the wrist when his gun discharged while he was trying to repair it. There were other work-related issues that suggested the constable was not doing his job properly.
Yet in the end WCB granted him compensation. They reasoned that prior to all these incidents, the constable's wife had been sexually harassed by the officer's sergeant (the tribunal referred to it as "sexual misconduct"). When the constable and his wife, who also worked for the detachment, sought assistance for the sexual harassment issue, they were not supported at all. In fact, according to the tribunal, "The case was very poorly handled by the employer." One sergeant told the constable he should handle the issue "man to man" with his boss, while another warned about reporting on a superior when the officer was on probation. The appeals tribunal decided the constable's troublesome actions (the domestic disputes, gun use problems and work issues) all stemmed from the stress caused by the detachment's poor handling of the sexual harassment incidents.
This is but one of many examples across Canada where human rights matters appeared in proceedings other than a human rights commission or tribunal. Human rights issues can form part of probation, discipline or dismissal decisions. They can be an integral part of a labour arbitration, a court case on wrongful dismissal, an application for employment insurance or a WCB claim. The Supreme Court of Canada said that when any issues related to human rights come before a regulatory tribunal, that tribunal has to address it - kind of like one-stop shopping. And since human rights legislation in Canada is given a preferred status, anyone deciding these issues must give them a lot of weight. In other words, when an employer's actions affect the human rights of employees and clients, these can be judged in many different venues, not just through a human rights commission.
From a workplace perspective, then, you need to be on the lookout for human rights issues that could be driving the problem. As with our police constable above, the police force was looking at his misconduct without looking at the root cause - the harassment of his wife and the detachment's abysmal way of dealing with it.
1) Follow up on the slightest whiff — as it likely means something really bad is happening. If you get the first sign that something could be a human rights violation, look into it. Don't wait for other things to pop up, or the next pop up might be a call from a lawyer or commission/tribunal
2) Don't think of these as just red herrings — because they might be more. When someone is involved in a process not related to human rights, but they bring up a human rights complaint, don't think it's just a red herring. Someone might have suffered through harassment or discrimination and didn't say anything until she had nothing to lose.
3) Issues are often intertwined — and rarely straight forward. How often does anyone deal with an issue like "I won't hire women"? If there is one problem, there's often others. Don't be surprised.