Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2019 CASE IN POINT: DISCRIMINATION SOCIAL MEDIA, divisive politics, and increasingly aggressive discourse in society have created an environment in which antagonism is more common when certain topics — like politics — are discussed. Sometimes discussions can deteriorate and lead to some unfortunate things being said. This is bad enough when it occurs among people generally, but what happens when it happens at work? What can employers do to smooth out politically-charged arguments that could lead to claims of harassment or discrimination? BACKGROUND Political discourse in the workplace: Risking discrimination and alienation BY IOANA PANTIS N ever discuss politics or religion in mixed company. at's a time- honoured rule that many of our grandparents adhered to in a well-mannered attempt to keep the peace while spending time with family, friends, or colleagues who might harbour differ - ing world views. At a time of workplace hyper-sensitivity — where every comment is parsed for potential offence — that advice is still worth heeding. Indeed, technological advancements and increasingly-democratized communication — from our mobile phones to social media accounts — are empowering employees to speak their mind on a wide range of topics. This is causing headaches for some employ- ers who have been forced to issue repeated reminders that free speech is not without limi- tations. While an employee may not be sanc- tioned for speaking freely from an individual rights perspective, doing so can have a nega- tive effect on an employer's brand. Speaking out on sensitive topics could also raise human rights or discrimination allegations, not to mention potential liability on the employer's behalf should they be deemed to have con- doned the potentially offensive conduct. Maybe you've been there: a colleague at work starts talking about a contentious topic in the news during lunch, another colleague chimes in with a seemingly witty criticism or distaste of the status quo. Maybe the topic is about the young Saudi refugee who re- ceived fast-tracked asylum after appealing for help on Twitter, or the Syrian refugee in Kingston who is being investigated by the RCMP for terrorism. Soon there's a heated group discussion with polarized political views taking place in the lunchroom. May- be an employee makes a comment to anoth- er along the lines of, "Why don't they just go back to where they came from?" unaware that she is speaking to a colleague who iden- tifies as Middle Eastern. It can be difficult for many employees to contain their political views when they feel a kinship to their colleagues, and even when they particularly dislike a colleague's viewpoint and want to disagree with them, in a (hopefully) diplomatic way. The ques- tion becomes, can employees even have such discussions in the workplace, without risking being perceived as offensive or dis- criminatory? Employer stepping in This is an important question for business owners, managers and HR profession- als who need to understand the extent of the duty they have to step in when politi- cal viewpoints are being exchanged in the workplace — particularly when they touch on sensitive, potentially offensive, or in- flammatory topics. Further, how can they mitigate legal risks associated with potential discrimination or harassment complaints, the negative impact on morale, or even the threat of increased employee turnover or disengagement should a workplace environ- ment become toxic? The first step would be for the employer or supervisor to identify a risk of harassment or discrimination. It may not always be the case that a formal complaint is made by an employee. For example, harassment is de- fined as "engaging in a course of vexatious comment or conduct that is known, or ought reasonably to be known, to be unwelcome" in the Ontario Human Rights Code and simi- larly in the province's Occupational Health and Safety Act. Regarding discrimination, employers have a duty under the Ontario code to treat all employees equally without discrimina- tion because of race, ancestry, place of ori- gin, colour, ethnic origin, citizenship, and creed, amongst other prohibited grounds. These grounds of discrimination may be grouped as race and race-related, and al- though each ground is distinct, there is over- lap between them. The social context of an individual is complex and often leads to an intersectional approach to discrimination based on several race-related grounds and non-race-related grounds. This means that inappropriate comments may target multiple protected grounds. Further, the code stipulates that every employee has a "right to freedom from ha- rassment in the workplace by the employer or agent of the employer or by another em- ployee" because of race-related grounds and other grounds. The language of the code clearly identifies an employer's duty as extending beyond just itself by including an agent or another employee. Other Ca- nadian jurisdictions have legislation with similar stipulations. The application of harassment policies isn't limited to an organization's employees. In British Columbia Human Rights Tribu- nal v. Schrenk, the Supreme Court of Canada affirmed that even third-party contractors can be deemed to have perpetrated work- place discrimination if their work creates a "sufficient nexus with the employment con- text," leaving the organization with which they were engaged ultimately liable for their discriminatory behaviour. If an employer fails to take appropriate steps to address discriminatory comments in the workplace, such as against minori- ties, the employer could be accused of creating or condoning a poisoned work environment. In other words, a workplace risks normalizing toxic behaviour and comments, irrespective of whether the discriminatory comments are directed at a particular individual or made generally. The potential consequence for employers is not just costly and time-consuming litiga- tion, but also increased employee turnover and decreased productivity affecting many business' raison d'être — profit. The Ontario Occupational Health and Safety Act (OHSA) also imposes a duty on employers to maintain a policy on workplace harassment and take steps to address ha- rassment when it is raised, or a complaint is made. Specifically, an employer must create a harassment policy and program reviewed at least annually; provide employees with infor- mation about the policy; conduct investiga- tions into all incidents and complaints of ha- rassment; and inform complainants in writing of the results of an investigation and correc- tive action taken. Again, most other Canadian jurisdictions have similar requirements. Minimizing the risk Of course, employers may consider several measures to minimize the risk that office

• Cover