National Post (National Edition)
Is there legal relief for political correctness?
Careful balance to be struck as per usual
AS ALWAYS, COURTS WILL LOOK TO SEE THAT A PROPER INTERNAL INVESTIGATION OR ANALYSIS OF THE CIRCUMSTANCES TOOK PLACE BEFORE AN EMPLOYEE WAS SANCTIONED, AND THAT THE SANCTION IS PROPORTIONATE TO THE MISDEED. — HOWARD LEVITT
What Conrad Black referred to in a recent column as the “apparently invincible, bone-crushing advance of the juggernaut of political correctness” increasingly has descended from our campuses to some of our workplaces in a creeping assertion of political orthodoxy. Is there legal relief?
“Political correctness” initially referred to language or measures intended to avoid offence or disadvantage to certain groups. But in recent years, it has become a cudgel wielded to enforce ideological orthodoxy and punish or `cancel' dissent on a range of topics.
In the workplace, it is harmful in several ways. As researchers have concluded, limiting the exposure to different perspectives and strategies places a drag on business performance. Talented, driven, creative workers are unlikely to enjoy working in a restrictive, oppressive environment and are apt to seek employment elsewhere. And, at its most extreme, political correctness can itself constitute a human rights violation.
This is not to diminish the importance of other workplace issues, such as discrimination and illegal harassment which also need to be addressed.
But political correctness has many negative repercussions, ones that can be difficult to measure due to the chill it can cast over potential complainants. There have been some prominent examples in recent years — James Damore's dismissal from Google is one example; he was fired for circulating a memo, in response to a request for feedback at a Google diversity seminar, explaining his views as to why men were overrepresented in IT at his employer. Or employees who have been fired (or subjected to a Margaret Atwood Twitter attack) for stating that both sides of the story should be heard before judgment is rendered on a case.
How does Canadian law protect political expression?
Most obviously, nine of Canada's provinces explicitly protect political beliefs in their human rights statutes. It is unclear whether the Ontario Human Rights Code's protection of a person's “creed” includes secular belief systems, but there are strong arguments that it does and should. Both the courts and the Ontario Human Rights Commission have signalled that `creed' may well capture political belief. Employees who feel they are being discriminated against on the basis of their politics can therefore, certainly in much of the land, bring a human rights claim.
Although the left has used the human rights regime to attack their political opponents, ironically, ideologically besieged conservatives can use it in their own defence.
The Damore episode is instructive in demonstrating the inevitable `clash of rights' that will occur in the Canadian context too between the right to political expression and the right to be free from harassment. Because two rights clash does not mean that one must cede to the other. Judges' and adjudicators' very task is to examine the specific contexts in achieving a balance between competing rights.
There are also statutory definitions of `harassment' and `violence' in the occupational health and safety legislation of many provinces.
Some complainants have attempted to press the boundaries of these concepts to encompass even the mildest forms of (their own, subjective) discomfort. Unfortunately for them, these statutory definitions clearly delineate only certain, serious forms of misconduct as punishable. “Microaggressions” are not.
For example, Ontario's Occupational Health and Safety Act defines “violence” as the exercise of physical force, the attempt to exercise physical force, or a threat to exercise physical force that could cause physical injury. This is a far cry from the “words as violence” concept becoming de rigueur on college campuses. The same statute defines harassment as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” Courts have held that a single instance of misconduct must be exceptionally egregious to rise to the level of harassment. Thus, a single instance, or even handful of instances, of `un-PC' language is unlikely to be punishable (under the statute) where it is not obviously unwelcome or not brought to the attention of the offender.
Faint hope for those hoping to use health and safety laws to shut down colleagues whose views they don't like.
There are also various `torts', legal jargon for wrongs, that employees can use to sue each other or their employer. One such example is “intentional infliction of mental suffering”. Again, the courts have created a very high bar to successfully sue for that tort. Ontario's Court of Appeal recently rejected an attempt to create a new, free-standing tort of “harassment.” The Supreme Court of Canada, in a well-known tort case, stated that, “The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.”
By implication then, courts expect employees to endure some adverse political opinions without crying mental distress, harassment, or a poisoned work environment. In the same way, although a toxic work environment would be a constructive dismissal, such a poisoned environment is not in the eye of the beholder. A court must conclude that no reasonable person could or should have had to put up with it.
Again, employers need not protect all employees from every imprecation and disciplining an employee for offending another may, depending upon the alleged “offence,” provide a claim against that employer by the person being accused when the person offended had no legal claim at all. Employers therefore need to be cautious before taking up the cause of an employee alleging “offence”.
Finally, though the Charter of Rights and Freedoms applies to governments, not private companies, the courts have affirmed that the Charter's values should inform and guide the common law in litigation between private parties. The Charter explicitly protects freedom of thought, belief, opinion, expression, association and other values that are directly relevant to political correctness.
All that said, the right to political expression in the workplace of course is not, and should not be, unlimited. As I noted in my recent piece on Whole Foods' decision to ban the poppy, employers have the right to restrict employee expression which damages their business or reputation, and to discipline employees for such expression, up to and including dismissal for cause. However, employers must exercise this discretion reasonably and cognizant of the law rather than prevailing sentiment.
As always, courts will look to see that a proper internal investigation or analysis of the circumstances took place before an employee was sanctioned, and that the sanction is proportionate to the misdeed. Employers should consider these points when deciding whether and how to censor an employee for political expression.
As such, it is important to draft policies establishing clear boundaries for employers and employees in terms of acceptable discourse, off-duty conduct, and, for that matter, the boundaries of what expressions are unacceptable both in the workplace and in dealings with coworkers.
Ultimately, a balance must be struck but it must be remembered that true `inclusivity' includes ideological inclusivity. As human rights case law makes clear, protecting political expression is important for every worker and company of every political stripe. The battle against PC-culture is not about one side scoring points but about fostering a strong, vibrant arena for robust discussion that strengthens our societies and, indeed, our workplaces.
Financial Post
Got a question about employment law during COVID-19? Write to me at levitt@levittllp. com. Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
STATUTORY DEFINITIONS ONLY ADDRESS MOST SEVERE FORMS OF MISCONDUCT.