To have a successful employment relationship between the employer and employee, the employer is obligated to ensure that the workplace is free from harassment and discrimination to protect an employee’s human rights. This can include policies outlining the requirements to maintain a work environment that addresses harassment and discrimination and an investigative process to examine any claims that come forward from employees. Otherwise, employers may risk being liable for human rights violations. Generally, employees are also expected to bring forward harassment claims in a timely manner so that the employer can investigate their claims and provide a resolution.
In this post, we will go over harassment in the workplace as a human rights violation and how this also relates to a claim of a poisoned workplace that prevents an employee from working in that environment. We will discuss a case example, Rougoor v. Goodlife Fitness Centres Inc., 2024 HRTO 312, in which a sexual harassment case was raised before the Human Rights Tribunal but was dismissed as there was no evidence that the employee had raised the issue with their employer until six months after their termination. This post will provide key takeaways for employers seeking to understand their obligations to ensure the workplace is harassment-free and give employees insights into their rights to work in a harassment-free environment.
Harassment in the Workplace as a Human Rights Violation
Human rights in the workplace are governed by the Human Rights Code (the “Code”). Under sections 5(1) and (2) of the Code, each employee has a right to equal treatment in their workplace, without discrimination based on race, ancestry, sex, sexual orientation, and more. Section 7(2) of the Code also outlines issues concerning harassment because of sex in workplaces. Under this section, each employee has a right to be free from harassment in the workplace because of sex, sexual orientation, gender identity, or gender expression by their employer, an agent of the employer, or another employee. Notably, employees are free from harassment from both the employer and other employees.
Harassment is defined in section 10(1) of the Code as engaging in vexatious comments or conduct that is known or ought to be known to be unwelcome reasonably. It is important to note that it is unnecessary for the person causing the harassment to know that the other person does not want to be treated this way if a reasonable person would conclude that it would be unwelcome behaviour. In other words, the person harassing another cannot rely on the excuse that they did not know their behaviour was inappropriate.
If it was another employee who sexually harassed the claimant, the employer is not vicariously liable under section 46.3(1) of the Code, although there are some exceptions under the case law. For harassment, it is possible for an employer to be liable if the harasser was part of the directing mind of the employer as a corporation or organization or where management knew or ought to have known about the harassment but failed to take reasonable steps to address it. The employer’s response could also be relevant to the finding of a poisoned workplace, as described below.
The person claiming harassment is responsible for proving it on a balance of probabilities (i.e. more probable than not). To prove harassment as a human rights violation, the claimant needs to provide clear, convincing, and cogent evidence.
Poisoned Workplace Due to Harassment
A related issue is a poisoned workplace arising from harassment. This finding uses the same test for determining a poisoned work environment, resulting in a constructive dismissal. Essentially, this means that the work environment was so poisoned that it fundamentally changed the employment contract, which includes an implied term that the employer will provide a work environment that is not so unwelcome that a reasonable person would conclude that the employee could no longer work there.
The test for finding a poisoned work environment is the following:
- There must be evidence that would lead a reasonable bystander to conclude that there was a poisoned workplace;
- For stand-alone incidents, a poisoned workplace only arises if the conduct is so serious that it creates a hostile or intolerable work environment; otherwise, the behaviour must be persistent or repeated.
The Human Rights Tribunal will also consider other relevant factors, such as:
- The number of comments or incidents;
- Their nature;
- Their seriousness;
- Whether taken together, the comments or incidents had become a condition of the claimant’s employment such that they had to endure discriminatory conduct and comments.
A poisoned work environment differs slightly from harassment, as defined in the Code. A finding of harassment involves a series or course of comments or conduct, whereas a poisoned work environment can be found for an egregious stand-alone incident. Also, if a poisoned work environment is found, the employer can be found liable under the Code.
Obligations of An Employer To Address Harassment in the Workplace
In the Rougoor case, the claimant made a human rights claim of sexual harassment in the workplace. She claimed that her co-worker harassed her, and the employer failed to investigate the matter properly. Several months after she was terminated, she informed the employer that she was sexually harassed in the workplace.
However, the Human Rights Tribunal noted that previous human rights cases ruled that an employer has no legal duty to conduct a workplace investigation after the person requesting it is no longer an employee.
The employer claimed that at no point during the employee’s employment were they aware she was being harassed. In this case, there was no evidence to suggest that she reported the harassment while working for the employer. There was also no evidence that the employer should reasonably know that the employee faced harassment. Without this knowledge, the Human Rights Tribunal found that the employer could not address the issue. The Human Rights Tribunal, therefore, concluded that there was no poisoned work environment that the employer could address.
Overall, the claimant’s evidence was inconsistent and could not be supported by any documentation. The claim was dismissed.
Contact Haynes Law Firm in Toronto for Advice on Workplace Harassment Claims
Our experienced employment law legal team at Haynes Law Firm in Toronto can assist you with workplace harassment claims, which can lead to a poisoned work environment where an employee cannot continue working. For employees, our goal is to ensure that they understand their rights and receive maximum compensation in workplace harassment cases. Haynes Law Firm also assists employers in avoiding liabilities that may arise from harassment claims. We are dedicated to finding the best resolution for you.To book a consultation, please contact us online or by phone at 416-593-2731.
