Cases of harassment in the workplace on the rise
Human rights suits are also up and increasingly costly to companies
On a Metro Vancouver work site, civil engineer Mohammadreza Sheikhzadeh-Mashgoul endured disparaging remarks about his religion, place of origin and sexual orientation from Edward Schrenk, a site foreman who was not his employer.
In Ontario, Toronto Transit Commission workers received racist and sexist tweets from customers.
Are employers responsible for protecting employees from customers’ racist, sexist, violent and homophobic tweets? What about harassment and discrimination from the employee of another company?
These and other recent legal cases represent key trends expected to impact B.C. workplaces this year. Employers will want to pay attention. If nothing else, these issues could prove costly.
In a recent Ontario arbitration case (Amalgamated Transit Union, Local 113 versus TTC), the arbitrator found ignoring a tweet, replying that it’s not condoned, or simply asking the poster to refrain from offensive language is not enough. Instead, an employer should notify the user that the behaviour is not condoned, ask the user to delete the offensive post, and follow up by blocking the user’s account if the post is not deleted.
In Schrenk v. British Columbia, civil engineer Sheikhzadeh-Mashgoul complained to the B.C. Human Rights Tribunal alleging workplace discrimination for insults from Schrenk.
But Schrenk and others argued the Tribunal has no jurisdiction since Schrenk and Sheikhzadeh-Mashgoul had different employers. On March 28, the Supreme Court of Canada will hear an appeal to decide the limits of employment discrimination including whether a power imbalance is necessary for a human rights violation at work.
“I believe we will see more of these cases come up,” said lawyer Stephanie Gutierrez of Fasken Martineau, which is Schrenk’s pro bono counsel. “Human rights is a hot button topic these days.” Workplace harassment legal cases are increasing: Former CBC Radio personality Jian Ghomeshi’s public criminal case is a reminder that harassment issues need to be addressed and investigated quickly, said Gutierrez, who is seeing a notable increase in workplace harassment cases.
One reason for the increase is bullying and harassment-related illnesses and injuries became com-- pensable under workers’ compensation in 2012, and “sometimes it takes time for the complaints to start coming in,” Gutierrez said.
Harassment is unwelcome behaviour that is humiliating or intimidating, and significantly and detrimentally affects the work environment. Workplace harassment may be “personal harassment” or human rights-based harassment (such as discrimination based on race, sex, or mental disability). Human rights ‘accommodation’ is
sues are rising: Human rights has “increased from let’s say a fraction of my practice to being a key area over the last eight years,” Gutierrez said, noting many employers deal with human rights issues regularly.
Employers are required to accommodate employees with a disability “to the point of undue hardship” for the employer — “You can’t simply terminate an employee because (he or she is) an alcoholic,” she said.
Disabilities might include anything from mental illnesses to addiction. Accommodation might include reassigning duties, providing a leave and graduated return to work. Human rights damages are in
creasing: In 2016, the B.C. Court of Appeal upheld an injury to dignity award of $75,000, more than double the highest previous award.
“The trend is human rights complaints are increasingly costly,” Gutierrez said.