Login
Take a Trial | Subscribe
Polls
Past Polls
Suggest a Poll
Send your comments to the editor
About HRinfodesk
Why HRinfodesk?
Privacy Policy
Legal Notices
Editorial Policy
Contributors
Feedback
Help Desk
How to Subscribe|Renew
Change Email Address
Login and Password Centre
Contact Us
 
      

   
 
Text Size: M L XL XXL Printer Friendly Version
  Email this article

Anti-discrimination, harassment policy and training

By Yosie Saint-Cyr, LL.B., Managing Editor at HRinfodesk.com---Canadian Payroll and Employment Law News, September 2008

The latest HRinfodesk poll wanted to know how knowledgeable employers are about their obligations, or not, to implement anti-harassment and anti-discrimination policies and provide related training to employees. Participants were asked Are employers required to have an anti-harassment & discrimination policy, and train all employees on the policy? Out of 330 respondents, the majority of respondents, (217, 65.75%) stated that yes, employers were required to provide policy and training; 73 (22.12%) respondents believed that employers were required to have policy but no training; and only 40 out of the 330 respondents (12.2%) believed that no policy or training was required.

Well, we can say it depends on the human rights legislation in a specific jurisdiction. However, the Supreme Court of Canada has established a common-law principle that essentially rules that punitive damages cannot be assessed against an employer who has taken all the preventive steps in discrimination and harassment.

Ultimately, employers are responsible for acts of work-related harassment. The Supreme Court has said that the goal of human rights law is to identify and eliminate discrimination. Employers control the organization, and are therefore the only ones who can actually reverse the negative effects of harassment and ensure a healthy work environment. So no matter what kind of workplace you own or business you operate, you have a responsibility to make sure your employees do not experience harassment. If harassment does occur, you must show that you did everything you could to prevent it, or to alleviate its effects.

Thus, policy and training have become necessities for organizations to prevent problems from happening and to avoid liability. In addition, recent court decisions and Human Rights Commission and Tribunal guidelines have made training and policy on preventing discrimination and harassment so essential that it is almost mandatory.

Below is a breakdown of the results of the poll on the topic of anti-harassment/discrimination policy and training. We are also providing a comprehensive overview of the topic, the legal implications and the challenges employers face.

Legal requirements and implications

In general, “discrimination” is prejudicial treatment of or stereotypical assumptions projected on a person or a group of people based on certain characteristics. It can be positive or negative prejudicial behaviour directed toward a certain group. Discrimination under the various human rights laws across Canada is based on direct or indirect violations of prohibited grounds (such as race, sex, age, gender, ethnic origin and disability). It can also be based on constructive or adverse effect discrimination.

Direct discrimination in the workplace refers to any form of unequal treatment that takes place on the job, based on a prohibited ground in the local human rights legislation. It can occur when an employer adopts a practice or rule that, on its face, discriminates on a prohibited ground.

Indirect discrimination takes place through another person or other means. For example, if an employer instructs its HR department not to take applications from members of a particular racial or ethnic background, that employer is discriminating indirectly (i.e., through the HR department).

Workplace rules, policies, procedures, requirements, qualifications or factors may not be directly or intentionally discriminatory but may nonetheless have an adverse effect on certain persons or groups. This may create barriers to achievement and opportunity, hence, constructive or adverse effect discrimination.

Harassment is a form of discrimination.

In general, harassment in the workplace means any improper behaviour by an employee that is directed at and is offensive to another employee, and which that person knew or should reasonably have known would be unwelcome. It comprises objectionable conduct, comments or displays made on either a one-time or continuous basis that demeans, belittles or causes personal humiliation or embarrassment to an employee. It includes harassment within the meaning of human rights legislation, i.e., based on any of the prohibited grounds of discrimination listed in the legislation.

Under many provincial and territorial laws, including for federally regulated organizations, certain employers are required to establish and maintain anti-discrimination and/or anti-harassment policies to protect their employees. Even if not specifically required by law, it is a good idea for any employer to have these policies in place. Not only do they enable an employer to make it clear to their employees that certain types of behaviour are intolerable, they may also provide a defence for an employer should a lawsuit arise. However, if a written policy is in place, the employer must make sure that they follow it and management and staff are trained on the policy and its implications.

Canadian courts and tribunals require employers to provide employees with a harassment-free workplace, and the courts may assess significant financial penalties if they do not.

While the courts have broadened the topics on which training is mandatory, the essential meaning of "mandatory" can vary by industry sector or legislative requirement. For example, mandatory training in employment practices means the courts are saying that a lack of training may make you liable where a claim has been filed, but it does not mean that you could be fined for not having performed the training. However, in other areas, such as those under occupational health and safety legislation and regulations, mandatory means that you can be fined or penalized for not having performed the training, even though an injury claim has not occurred.

Now that we understand what the common law requirements are, what are the statutory requirements by jurisdiction?

  • Federally regulated organizations: The Canada Labour Code requires employers to develop their own anti-harassment policies. In addition, the Canadian Human Rights Commission will consider the existence of appropriate anti-harassment policies and procedures in evaluating a company's liability in harassment complaints under the Canadian Human Rights Act. In the Act, there are 11 protected grounds against discrimination. They are: race, national and ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, physical and mental disability, and pardoned criminal conviction. Employers are responsible for preparing appropriate policies, monitoring their effectiveness, updating them as required, ensuring all employees are aware of the policy and providing anti-harassment training. Moreover, employers can be held legally responsible for harassment in their workplaces. Courts may impose penalties on the employer and the manager, even if neither of them was involved in the harassment. An organization that does nothing to prevent harassment, therefore, may well find itself facing serious financial and legal consequences.

    In addition, new work-related violence prevention requirements under the Canada Labour Code, Occupational Health and Safety part took effect June 17, 2008, and is defined as "any action, conduct, threat or gesture of a person towards an employee in their workplace that can reasonably be expected to cause harm, injury or illness." Employers are required assess any risk in the workplace and implement policies to help prevent and address violent incidents effectively.
     

  • Alberta: Under the Human Rights, Citizenship and Multiculturalism Act, there are 13 protected grounds against discrimination. Employers cannot discriminate against applicants and employees on the grounds of race, colour, ancestry, place of origin, religious beliefs, gender, age, physical disability, mental disability, marital status, family status, source of income and sexual orientation. Employers are responsible for ensuring that the work environment is free from discrimination, including harassment, based on a protected ground. Employers are not required to have policies and training on discrimination and harassment, but are strongly advised to consider introducing policies as a preventive measure to maintain a respectful workplace. Employers are, however, responsible for ensuring that their policies and procedures are non-discriminatory. Any infringement of the Act in the course of employment will likely make the employer liable. The responsibility of having a policy includes providing training on the policy.
     
  • British Columbia: Under the Human Rights Code, there are 12 protected grounds of discrimination. Employers cannot discriminate against employees on the grounds of race, colour, ancestry, place of origin, religion, marital or family status, physical or mental disability, sex, sexual orientation, age (19 years and over), criminal conviction and political belief. The law has established an employer's responsibility to provide a workplace that is free from discrimination and harassment, and many employers carry out this responsibility through establishing human rights/harassment policies. A good policy will have a clear statement of intent, examples of what is covered in the policy, a complaints process that is fair and efficient and remedies that focus on the person experiencing the discrimination and on future preventive strategies (see below).
     
  • Saskatchewan: Under the Human Rights Code, there are 12 protected grounds of discrimination. Employers cannot discriminate against employees on the grounds of ancestry, colour, race or perceived race, religion or religious creed, sex, marital status, disability, nationality or place of origin, age (18 or over), sexual orientation, family status and receipt of public assistance. Employers must provide a discrimination-free workplace. It's up to the employer to protect employees from discrimination based on any of the prohibited grounds. Employers are not required to have policies and training on discrimination and harassment, but are strongly advised to consider introducing policies as a preventive measure to maintain a respectful workplace. Employers are responsible for developing non-discriminatory policies and procedures. Any infringement of the Act in the course of employment will likely make the employer liable. The responsibility of having a policy includes providing training on the policy.

Saskatchewan also has specific provisions dealing with harassment in their health and safety legislation. Section 3 of the Occupational Health and Safety Act, requires employers to ensure that their workers are not exposed to harassment at work. Section 36 of the Occupational Health and Safety Regulations, requires the employer to implement a policy to protect workers from harassment. The regulation also lists what a policy statement must include. The policy must be developed with the local occupational health committee. The employer must put the policy into practice and post a copy in a conspicuous location in the workplace. Harassment includes harassment on the grounds found under the Human Rights Code; but there is a second category of harassment that adversely affects the worker's psychological or physical well-being and that the harasser knows or ought reasonably to know would cause a worker to be humiliated or intimidated.

  • Manitoba: The Human Rights Code prohibits persons from discriminating with respect to employment. There are 12 prohibited grounds of discrimination: ancestry (including colour and perceived race), nationality or national origin, religion or creed (and religious belief, association or activity), age, sex (including pregnancy), other gender-determined characteristics, sexual orientation, marital or family status, source of income, political belief, association or activity, and physical or mental disability. Employers are not only legally responsible for their own acts of harassment, but may also become liable for such conduct by their employees. The onus is on management to take reasonable steps to prevent harassment.

Any employer should take active steps to discourage harassment in the workplace, and must do so if they are aware, or ought to be aware, that harassment is occurring in their place of business. Such reasonable steps may include developing internal policies to deal with harassment and communicating these policies to all employees. Policies should include provisions for reporting complaints to management, effective investigation and meaningful resolution of those complaints. The responsibility of having a policy includes providing training on the policy.

Manitoba has specific provisions dealing with harassment in their health and safety legislation. Under the Workplace Safety and Health Regulation 217/2006, every employer is required to implement a policy to prevent harassment in the workplace, and to protect workers from workplace harassment that may affect their health and safety. In addition, the Regulations require employers to take action to ensure that workers comply with the harassment prevention policy. In the Regulation, "harassment" means:

(a) any vexatious behaviour in the form of hostile, inappropriate and unwanted conduct, verbal comments, actions or gestures that affect a worker's dignity or psychological or physical integrity and that results in a harmful workplace for the worker, or

(b) the improper use of the power or authority inherent in a person's position to endanger a worker's job, undermine the worker's job performance, threaten the economic livelihood of the worker or negatively interfere in any other way with the worker's career.

"Workplace-related harassment" means harassment of a worker by his or her employer or supervisor or by another worker, whether or not the harassment occurs at the workplace. However, it does not include any reasonable action that is taken by an employer, manager or supervisor relating to the management and direction of the employer's workers or the place of employment.

  • Ontario: The Human Rights Code provides protection against discrimination in employment based on 15 grounds: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex, sexual orientation, disability and perceived disability, age, marital status, same-sex partnership status, family status and record of offences.

Under the Code, employers are required to provide inclusive and non-discriminatory environments. Harassment and discrimination violate the law, and organizations that fail to take adequate steps to prevent and address harassment and discrimination may be held liable. Under the Code, employers have the ultimate responsibility for ensuring a healthy and inclusive environment, and preventing and addressing discrimination and harassment. They must ensure that their organizations are free from discriminatory or harassing behaviour. A corporation, trade union or occupational association, unincorporated association, or employers' organization will be held responsible for discrimination, including acts or omissions, committed by employees or agents in the course of their employment. This is known as vicarious liability. Simply put, an organization is responsible for discrimination that occurs through the acts of its employees or agents, whether or not it had any knowledge of, participation in, or control over these actions.

An important factor in the assessment of liability or damages is the presence or absence of appropriate policies and procedures for preventing and responding to discrimination and harassment.

A complete strategy to prevent and address human rights issues should include the following elements: a barrier prevention, review and removal plan; anti-harassment and anti-discrimination policies; an internal complaints procedure; an accommodation policy and procedure; and an education and training program. An effective strategy will combine all of these elements.

  • Quebec: Under the Charter of Human Rights and Freedoms, every person in Quebec has the right to be treated equally and therefore to protection against discrimination and harassment. The Charter lists 11 prohibited grounds of discrimination: age, social condition, political convictions, civil status, pregnancy, handicap, language, sexual orientation, race, religion and sex.

If a complainant can show that the employer or union has failed to maintain a harassment-free workplace, monetary compensation may have to be paid. Moreover, employers can be found responsible for acts committed by their employees in contravention of the Charter.

The Quebec Human Rights Commission encourages and provides support for the establishment of policies against discriminatory harassment in the workplace. The introduction of a policy reflects the intention of employers to assume responsibilities by establishing effective dissuasive measures that are both preventive and corrective, in other words, that include both assistance measures and remedies.

Quebec also deals with harassment under their Act Respecting Labour Standards. The Act makes employers responsible for preventing hostile behaviour and intimidation in their workplaces. Every employee has a right to a work environment free from psychological harassment. Employers must take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put an end to it.

According to the Act, “psychological harassment” means any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures that affects an employee's dignity or psychological or physical integrity and that result in a harmful work environment for the employee. A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment. The Labour Standards Commission (Commission des normes du travail) has indicated that to comply with Quebec's law against psychological harassment, employers are required to:

· Promote respectful interpersonal communication; manage all staff in the same fair manner

· Take quick and appropriate action to manage conflicts; do not allow the situation to deteriorate

· Clearly define the responsibilities and tasks of each employee

· Put in place a confidential procedure for reporting incidents that is known, efficient, credible and practical

· Consider specialized counselling services to help put a stop to a psychological harassment situation; this may also help to prevent other such situations from arising

  • New Brunswick: The Human Rights Act prohibits discrimination and harassment in employment on the following 14 grounds: race, colour, national origin, place of origin, ancestry, religion, age, marital status, sex, sexual orientation, physical disability, mental disability, social condition (which includes source of income, level of education and occupation) and political belief or activity. Employers who are subject to the Act have a duty to ensure that their policies, practices, facilities and equipment do not have a discriminatory effect based on a prohibited ground.

Employers subject to the Act's prohibitions must avoid policies and practices that exclude people because of one or multiple grounds mentioned above. They must also eliminate any discriminatory effect of policies and practices by accommodating each individual's particular characteristics, provided they can do so without incurring undue hardship or sacrificing their objectives. In addition, employers are responsible for ensuring that the work environment is free from discrimination, including harassment, based on a protected ground. Employers are strongly advised to consider introducing policies as a preventive measure to maintain a respectful workplace. Any infringement of the act in the course of employment will likely make the employer liable. The responsibility of having a policy includes providing training on the policy.

Nova Scotia: The Human Rights Act affirms every person is free and equal in dignity and rights without regard to the following 15 prohibited grounds of discrimination: disability (physical or mental); race or colour; sex (including gender and pregnancy); sexual harassment; sexual orientation; marital status; family status; ethnic origin; national origin; aboriginal origin; religion and creed; source of income; political belief, affiliation or activity; and age. With respect to employment, it prevents a person or organization from treating someone unfairly because of a characteristic that is not relevant to the person's ability to work. Employers are responsible for developing non-discriminatory policies and procedures and ensuring that the work environment is free from discrimination, including harassment, based on protected grounds. Employers are strongly advised to consider introducing policies as a preventive measure to maintain a respectful workplace. Any infringement of the act in the course of employment will likely make the employer liable. The responsibility of having a policy includes providing training on the policy.

  • Newfoundland and Labrador: The Human Rights Code prohibits discrimination by an employer, or any person or agency acting on the employer's behalf, against any individual with regard to advertising, hiring practices, continued employment, or any term or condition of employment on the basis of race, religion, religious creed, sex, marital status, physical disability, mental disability, political opinion, sexual orientation, colour or ethnic, national or social origin, age and family status.

A person who has the authority to prevent or discourage harassment may be considered responsible for failing to exercise his or her authority to do so. A complainant may name the company as a party to the complaint, as well as the perpetrator of the harassment. When a complaint cannot be settled during the investigation and proceeds to a Board of Inquiry, the board may make an order against both the company and the harasser. The Human Rights Commission believes that the best way to deal with discrimination is to prevent it from occurring in the first place. Employers should make an effort to understand the Code and ensure their policies comply with its provisions. Employers are responsible for developing non-discriminatory policies and procedures and ensuring that the work environment is free from discrimination, including harassment, based on a protected ground. Employers are strongly advised to consider introducing policies as a preventive measure to maintain a respectful workplace. Any infringement of the act in the course of employment will likely make the employer liable. The responsibility of having a policy includes providing training on the policy.

  • Prince Edward Island: The Human Rights Act protects employees against discrimination in employment on the basis of: age; colour, race, ethnic or national origin; criminal conviction; political belief; sexual orientation; creed or religion; family and marital status; physical and mental disability (including addiction); sex (including sexual harassment and pregnancy); and source of income.

Employers must accommodate the needs of individuals or groups protected by the Act to the point of undue hardship. They should make an effort to understand the Code and ensure their policies comply with its provisions. Employers are responsible for developing non-discriminatory policies and procedures and ensuring that the work environment is free from discrimination, including harassment based on a protected ground. Consequently, employers are strongly advised to consider introducing policies as a preventive measure to maintain a respectful workplace. Any infringement of the act in the course of employment will likely make the employer liable. The responsibility of having a policy includes providing training on the policy.

In PEI, the Employment Standards Act requires every employer to have and post a sexual harassment policy. The policy should include procedures for reporting sexual harassment. Many employers are now including bullying or personal harassment in their workplace harassment policies.

  • Northwest Territories: The Human Rights Act protects and promotes human rights. It's against the law to discriminate against or harass people in the area of employment because of: race; colour; ancestry; place of origin; ethnic origin and nationality; sex; sexual orientation or gender identity; family or marital status or family affiliation; social condition; religion or creed; political belief or association; a pardoned criminal conviction; disability; and age. The act embodies the principle that all persons should be assessed on individual merit and not on characteristics unrelated to job performance.

Employers have a legal duty to provide a workplace that is free of discrimination and harassment, and to take reasonable steps to prevent and to stop harassment. An employer can take steps to prevent human rights complaints by adopting non-discriminatory policies and procedures. The responsibility of having a policy includes providing training on the policy. Moreover, employers are responsible for the actions of their employees.

  • Nunavut: The Human Rights Act protects and promotes human rights. It's against the law to discriminate against or harass people in the area of employment because of: race, colour, ancestry, ethnic origin, citizenship, place of origin, creed, religion, age, disability, sex, sexual orientation, marital status, family status, pregnancy, lawful source of income and conviction for which a pardon has been granted. The act embodies the principle that all persons should be assessed on individual merit and not on characteristics unrelated to job performance.

Employers have a legal duty to provide a workplace that is free of discrimination and harassment, and to take reasonable steps to prevent and to stop harassment. An employer can take steps to prevent human rights complaints by adopting non-discriminatory policies and procedures. The responsibility of having a policy includes providing training on the policy. Moreover, employers are responsible for the actions of their employees.

  • Yukon: The Human Rights Act states that it is illegal to discriminate against people in employment based on the following grounds: ancestry, including colour or race; national origin; ethnic or linguistic background/origin; religion or creed; age; sex, including pregnancy; sexual orientation; physical or mental disability; criminal charges or criminal record; political belief, association or activity; marital or family status; and source of income. Employers have a responsibility to provide an environment free of harassment and discrimination. You are also responsible for any act committed by any of your officers, directors, employees or contractors in the course of their employment. Employers must take measures to prevent harassment and discrimination through education of staff, a clear and well-publicized policy against harassment and discrimination, and a procedure for handling complaints quickly and confidentially.

Note that under provincial or territorial occupational health and safety legislation, all employers must take every precaution reasonable in the circumstances to protect the health and safety of their workers in the workplace. This includes protecting them against the risk of workplace violence. Employers have a responsibility to create a healthy, respectful environment for their employees. Regardless of a specific legal obligation, employers are required to protect their employees against any risk at work, whether it is physical or mental injury, and this includes workplace bullying.

Preventing discrimination and harassment

Committing to preventing discrimination and harassment in the workplace means building a culture of human rights in the workplace. This requires training, policies, systems and people within the organization who understand how to deliver such programs.

An anti-discrimination/harassment program and accompanying policy are based on a series of principles: respect for individuals' physical and psychological integrity, respect for their dignity and privacy, the right of individuals to enjoy fair and reasonable working conditions that do not endanger their health and safety, and the right to be treated equally, without discrimination or harassment on grounds outlined in human rights legislation.

The policy must be based on the premise that discriminatory harassment constitutes an infringement of human rights. As a result, the employer undertakes all the necessary steps to prevent infringement and, where necessary, corrective action.

The policy should state:

  • The employer's commitment with regard to discriminatory harassment
     
  • The policy's objectives
     
  • A definition of discriminatory harassment
     
  • The areas in which it applies
     
  • The actions that may be taken
     
  • The process for dealing with complaints, the resolution process and all other procedures
     
  • The other remedies available to victims

Training employees to prevent workplace discrimination and harassment is nothing less than essential. Not only can workplace discrimination and harassment affect employee productivity, it can divert resources from the company's real business. Improper conduct can also lead to company liability for workplace discrimination and harassment.



© 1999-2017 First Reference Inc.  All Rights Reserved. ISSN 1713-6105
Legal and Copyright notices      Privacy Policy