NOT EVERY HARASSMENT COMPLAINT NEEDS TO BE INVESTIGATED
Political correctness can lead to practices that exceed the law, Howard Levitt argues.
There is a war on civilization throughout North America. It began with a deliberate attack on one of its most fundamental tenets, freedom of speech.
I have had a home in Nicaragua for many years. Nicaragua is currently restive, and its civil instability started — as such movements often do — on college campuses. Nicaraguan students are demanding civil liberties. They are being shot in response.
Yet here in Canada, the organized left on college campuses resist essential civil liberties. How did we come to this point?
Our campuses have become unrecognizable. Tenure and academic liberty were devised to promote vigorous debate without fear of reprisal. Today, there is no such security or liberty. Students demand the right to be “protected” from uncomfortable views. They ask for “safe zones” and “trigger warnings” before being exposed to anything challenging their respective orthodoxies. College culture is informed by a cult of identity politics in which individuals are seen as part of a collective identity rather than as individuals.
Caucasian students, in particular, are asked to “check their white privilege” and expiate for their inherent presumed (or at least purported) collective guilt. Antipodal — often conservative — epistemologies and presentations are often shouted down by screams, occupiers, the boycott or ban of groups or individuals, the setting off of fire alarms.
It is in this context that Lindsay Shepherd is suing her inquisitors at Wilfrid Laurier University. The very environment in which she worked cultivated a world view that both targeted her and rejected the basic precepts of free academic discourse.
Her crime? Shepherd has been pilloried for showing a short video from Toronto television station TVO of Jordan Peterson, an academic from the University of Toronto, debating another scholar. As a result, she was called on to the carpet by her own professor, her department chair and Wilfrid Laurier’s director of gender equity for an inquisition during which she was browbeaten and Dr. Peterson was compared to Adolf Hitler. (They still do teach students about Hitler, I hope.)
Although public outcry caused the university to apologize, her mistreatment continues. Some apology.
The political correctness movement that informed Shepherd’s subjugation has migrated to many workplaces and HR departments. It has led to inaccurate conceptions in a number of spheres and disproportionately grown the thirdparty “harassment investigation” industry — leading to practices and protocols that vastly exceed what the law actually demands.
Legally, whether in the workplace or on campus, not every negative encounter or unpleasant exchange amounts to prohibited harassment. The ironic result of this movement is the tolerance of behaviour that once wouldn’t have been tolerated and the discipline of employees for conduct that is not disciplinable.
Simply, contrary to current common belief, every complaint need not be investigated. It has to reach a level of materiality, and the test is not subjective — nor altered by the beliefs of the complainant.
Poorly performing employees need not be coddled. Demanding accountability and excellence, refusing inferior work or chastising an employee for failures and the creation of exposure does not constitute legal harassment. Performance management is not harassment. Accepted norms are partly a function of the context and the environment. To take an extreme, we see hockey coaches between periods screaming angrily, sometimes profanely, at their players. No one looks askance.
Managers are people and thus have different styles. Being brusque or even rude (although ill-advised and unpleasant) is not a violation of Occupational Health and Safety law. Even current employment legislation dealing with harassment and bullying makes exceptions for appropriate discipline.
Similarly, despite the protective legislation imposed by recent governments, stress is not a disability, and stress leave need not be provided unless it rises to the level of an actual medically qualified disabling condition.
We all have employees who look for excuses not to attend work, particularly around summer weekends. If that is being abused, it need not be tolerated. If it is, your other employees will resent you and may stretch out their own weekends.
Management has the right to manage Canadian employees — who are not legally entitled to those safe zones or trigger warnings on campuses. When you have a problem employee, you need not be paralyzed by the threat of a phantom lawsuit for abuse or harassment into inaction. Financial Post
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt. Twitter.com/HowardLevittLaw