With the upsurge of technology, there is more opportunity for our interactions to be broadcast and misinterpreted. Many employees have cell phones and some employers and employees communicate via text message. In today’s workplace, the dynamic between employers and employees is also increasingly informal. Jokes are passed around. No hard feelings, right? Wrong. One “light-hearted” text message or off hand joke may come back to haunt an employer. Bottom line, making an offensive or prejudiced comment can create a poisoned work environment. This can result in a damage award against an employer under Ontario’s Human Rights Code (the “Code”).
A Definition: Or lack thereof
The term “poisoned work environment” is not found in the Code. When deciding whether comments or conduct amount to a “poisoned work environment” most adjudicators do not refer to a generally recognized definition of this term. Accordingly it is difficult to predict whether a specific comment(s) and/or action(s) will likely be found to create a poisoned work environment.
A Case Study
In one case an adjudicator under the Code made the following findings of fact:
1. The owner of the restaurant made a comment in reference to at least one former Black employee being on “Jamaican time.” The person who filed the complaint under the Code, a waitress, was not Black. She self-identified as being a white Canadian of Irish-Scottish descent.
2. The owner adopted a tagline for the Valentine’s Day promotion that he, according to the adjudicator “knew or ought reasonably to have known could reasonably be interpreted as inviting customers to kiss staff and that he reasonably ought to have known that this would make the waitress uncomfortable.” During the promotion period customers would get a 14% discount if they kissed each other (or if the customer was alone, if they kissed themselves, for example, on the hand) and staff would take a picture of the customer’s kiss and post it on a wall under the hearing “love starts here.” As part of this promotion, the owner required his staff, which was predominantly female, to wear a button that said, “A kiss gets you 14% off.”
3. The owner asked the waitress whether it was true that girls like anal sex, and that after the waitress demurred in response, the owner replied, “oh come on, you know you’ve tried it.”
4. The owner sent a text message to the waitress’s boyfriend that said, “Katie was little red riding hood, were you a wolf, did you eat her?” with a winking smiley face at the end. The adjudicator concluded: “ I found that the text message was sent as a joke or double entendre by [the owner] to use the context of the little red riding hood fairy tale where the big bad wolf literally eats the young girl to convey a double meaning to suggest the sexual act of cunnilingus.” The owner did not send the text to the waitress.
The Cost of Creating A Poisoned Work Environment
In this case, after a two day hearing, the adjudicator concluded the owner created a poisoned work environment and awarded the waitress $ 3000 as compensation for injury to her dignity, feelings and self-respect.
Lessons to be Learned:
1.Be very careful about using racial, sexual or other stereotypical comments unless you are absolutely sure they will not offend.
2.If a female employee objects to a business promotion because it makes her uncomfortable then carefully re-consider the promotion or address the identified concerns.
3. References to sexual acts should always be avoided in the workplace
4. Be cautious about inadvertently making sexual innuendos
For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions, you can contact him at 416 317-9894 or at [email protected]
A recent case, Headley v. City of Toronto, 2019 ONSC 4496, shows that alleging just cause for termination for a long-service employee can be a risky and costly strategy.
As we have written before, to be valid, a resignation must be voluntary, clear and unequivocal. There are circumstances where employees are allowed to retract their resignation, and if an employer does not accept the retraction, the employer can be found to have...
Two recent Ontario Superior Court of Justice (“the Court”) decisions shed light on what types of termination clauses will be upheld and which will be deemed void and therefore unenforceable. This blog discusses both these decisions. 🅇 Unenforceable termination...