Bully Bosses: When Harassment is Not Discrimination - LawNow Magazine

Bully Bosses: When Harassment is Not Discrimination

Human Rights Law ColumnWhat legal remedies do employees have if they are verbally or non-verbally bullied by their supervisor or co-workers? In the workplace, bullying can include behaviours such as: damaging your reputation; humiliating you in public; accusing you of lack of effort; calling you names; insulting, teasing, or intimidating you; preventing your access to opportunities; isolating you physically or socially; imposing undue pressure to produce work; setting impossible deadlines; making consistent unnecessary disruptions; failing to give you credit; assigning meaningless tasks; setting you up for failure; or removing responsibility (C. Rayner, H. Hoel, C. Cooper, Workplace Bullying: What We Know, Who is to Blame and What We Can Do, London: Taylor and Francis, 2002).

What are some of the social and economic impacts of workplace bullying? Research in the United Kingdom shows that one-third to one-half of stress-related illness is due to workplace bullying. A report tabled in the British Parliament estimated that 40 million working days are lost each year because of bullying.

In Canada, there has been some legal response to the problem of workplace violence. Occupational health and safety laws in a number of jurisdictions, including the federal sphere (transportation companies, banks, airlines), British Columbia, Alberta, Saskatchewan, Manitoba, and Nova Scotia directly address workplace violence as a health and safety issue. For example, Alberta’s Occupational Health and Safety Act, requires employers to develop a policy and procedures respecting potential workplace violence. Section 391 requires employers to instruct workers on how to recognize workplace violence; communicate the organization’s policy and procedures related to workplace violence; develop appropriate responses to workplace violence; and develop procedures for reporting, investigating, and documenting incidents of workplace violence.

While these provincial and federal codes address violence in the workplace, what about harassment (e.g., verbal or non-verbal bullying)? While there is growing recognition of workplace bullying/harassment as a significant problem, and some companies have harassment policies, the only legal remedy available in most jurisdictions across Canada is to make a complaint under human rights law.

There are limitations to this process, however. The behaviour must be based on discrimination in an area recognized by the human rights code(s). For example, if the discriminatory harassment in the employment setting is based on race, religion, gender, or other such ground, the human rights law could provide a remedy.

However, in many cases, harassment is based on other grounds or perhaps grounds that are not easily identifiable. In these cases, aside from perhaps launching a civil suit for a tort (e.g., of the intentional infliction of mental distress), there is not much in the way of legal protection from this problem.

One exception is Quebec’s Act Respecting Labour Standards which prohibits “psychological” harassment (R.S.Q. c. N-1.1, ss 81.18 and 81.19). Also, Ontario has introduced Bill 168, An Act to amend the Occupational Health and Safety Act which deals with violence and harassment in the workplace.

Ontario’s Bill 168 defines workplace violence and harassment as follows: “workplace harassment” means “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known as unwelcome”; and “workplace violence” means “(a) the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker, (b) an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.”

Under Bill 168, every Ontario employer that regularly employs more than five workers must:

  • develop and post a policy addressing workplace violence and harassment;
  • develop a program to implement the policy;
  • include measures to control risk of workplace violence and harassment, emergency response procedures, reporting procedures to be followed by workers, and investigation procedures;
  • take every reasonable precaution for the protection of a worker if the employer knows or ought reasonably to know that there is a likelihood that the safety of a worker might be endangered at the workplace by an act of domestic violence;
  • provide information and instruction to workers on its workplace violence and harassment policy and program; and
  • disclose to its workers the risk of violence from a person with a history of violent behaviour who they may encounter in the course of employment.

Finally, Bill 168 adds that an employee can refuse work if there is workplace violence. The endangered employee is required to stay only “as near as reasonably possible to his or her work station.”

As the costs (both economic and social) of harassment and violence in the workplace are quite considerable, it is positive that the Ontario government is seeking to address this problem through legislation. This is especially so in the case of harassment, where often, the harassment is not based on a ground of discrimination covered under human rights codes. Therefore it is necessary to provide another legal avenue for addressing this increasing problem. Hopefully the education provided about the harassment policy and programs will have the added effect of reducing harassment in the workplace.

Comments

  1. Emily Lawson says

    I think laws and rules against harassment and bullying could not point to the root of the problem and could not find an efficient and reliable way to prevent it or even reduce it.
    This kind of abuse is also very common in academic environment where a student for no good reason can be stopped from graduation or from licensing. I am not sure that the damage done in this case is completely understood or considered.
    The law is loose and organizations tutoring human rights are lacking of interest and consideration.
    A victim of these practices would not truly know from whom or how to get help. Most of them are silent, scared and broken in all ways. There are many of them in Canada.

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