Workplace Harrassement and Discrimination

Employers in Ontario are required to provide a workplace that is free from harassment and discrimination under both the Occupational Health and Safety Act (“OHSA”) or the Human Rights Code (the “Code”).  In honour of Pride Month, today’s blog post addresses the unique responsibilities of employers in ensuring they make efforts to develop an inclusive workplace environment for members of the 2LGBTQIA+ community.

Legal Framework

Employers are required by the Code not to discriminate against any person with respect to their employment because of, among other things, their sex, sexual orientation, gender identity, or gender expression.  

The Ontario Human Rights Tribunal has held that where there is prima facie discrimination, which means that on a cursory view of the situation, it appears that the employee faced discrimination, it is the employer’s burden to show that its action was in no way based on a protected ground.  Put another way, if an employer’s decision or course of action, such as a decision to terminate an employee, was in any way related to that person’s sexual orientation, that decision or course of action is tainted by discrimination.

Employers also have a duty under the OHSA to ensure that their workplace is free from harassment, which includes harassment for grounds protected by the Code.  Duties of employers include an obligation to investigate incidents and complaints of harassment, provide updates to the employee facing harassment of the results of the investigation including any action taken, and to annually review its internal harassment policy to ensure that the policy has been effectively implemented.

Fostering Inclusion

Many employers take positive steps towards fostering inclusion of 2LGBTQIA+ employees during Pride Month by hosting workplace events, attending external events, posting messages of support to social media accounts, or otherwise.

However, the reality is that discrimination or harassment in the workplace often takes a much more subtle form.  The Ontario Human Rights Commission has published a comprehensive guide on discrimination relating to sexual orientation and the forms it could take.

For instance, employers may negatively assess the “fit” or competence of an employee because of their perceived sexual orientation without even realizing that they are doing so.  This form of discrimination, which is prohibited by the Code, is often referred to as “implicit bias.”  bias and is more pernicious than outright discrimination because the employer may not even realize, and often does not intend, to discriminate against the employee. 

Employers may not be able to completely eliminate implicit bias from the workplace entirely, but they can take steps to mitigate its effects.  The inclusion of workplace training in non-discrimination that is specific to sexual minorities can help employers identify biases that they may hold, helping both employers and employees to take steps to ensure that they are not making decisions based on implicit bias. Employers should also address allegations of either workplace discrimination or harassment so that concerns can be dealt with promptly.

Employer Responsibilities in a Politically Charged Climate

Employers are now facing a rather unique challenge given the present political climate.  Recent setbacks for 2LGBTQIA+ rights in both Canada and the United States have emboldened groups opposed to equal rights for sexual minorities.  Several school boards in Ontario have voted not to fly the pride flag during Pride Month, there have been threats against drag queens holding book readings at public libraries, and New Brunswick recently made changes to its inclusion policies in schools for gender non-conforming students.

Perhaps most prominently, in the past week, there was a violent attack at the University of Waterloo in what police describe as an apparent hate-motivated attack related to gender expression and gender identity.

While these incidents are not necessarily directly related to the duties of employers, the challenge this poses for employers is that they may face reluctance or hostility towards inclusive policies that they try to implement in the workplace.  Employers may experience additional push back in implementing policies meant to satisfy their obligations under either the OHSA or the Code. Employers should treat any threat of workplace violence seriously and conduct workplace investigations where appropriate to get ahead of these challenges.

Take Away

In conclusion, employers face significant obligations under the OHSA and the Code.  Discrimination is not always overt, and employers can help address more subtle forms of discrimination through inclusive policies and workplace training that specifically addresses issues like implicit bias.  Employers may also face pushback or see threats of violence due to the current political climate, posing additional challenges in fostering inclusion for the 2LGBTQIA+ community, and should conduct workplace investigations where appropriate. The GWL team is well-equipped to help your workplace meet OHSA and Code obligations and can assist your workplace in creating and implementing inclusive policies and procedures.