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EMPLOYMENT LAW
Aug 6, 2014

Discrimination or just plain mean?

Poor treatment of employees isn’t necessarily a human rights issue, but can be an employment law issue
    

By Jeffrey R. Smith

Every employee is entitled to be treated with respect. While sometimes managers and supervisors may feel the need for some tough love, these days a management style that involves a lot of yelling and strict supervision is usually frowned upon — especially in an age of increased incidences of stress leave and concerns for poisoned work environments.

But while bad behaviour by a manager isn’t ideal and could border on harassment, there can be a difference between that and discrimination. Human rights legislation is designed to protect people from suffering adverse treatment based on specific characteristics protected by the legislation that puts them at a disadvantage based on the general population. It doesn’t protect them from simply being treated poorly or unfairly, if the manager treating them like that treats everybody like that. If the latter is the case, an avenue other than a human rights complaint is probably the proper course of action.

An Ontario worker found out earlier this year that even if he has characteristics that are protected under human rights legislation, it doesn’t mean any bad treatment is related to those characteristics. Over a period of time, the worker felt he was being singled out and picked on by his supervisor. The treatment included yelling at him for not wearing safety boots, telling him to leave an information session to which he was invited, insulting him, threatening him with firing and demotion, and touching his head while telling him to “Come over to the dark side.”

The worker filed a human rights complaint, arguing this type of treatment was based on his sexual orientation. However, the worker didn’t provide any evidence tying the way he was treated to his sexual orientation or any ground, nor did the Ontario Human Rights Tribunal see any links to a protected ground under the province’s Human Rights Code. The worker’s relationship with his supervisor was tense and he was subjected to unfair and questionable treatment, but he was not put at a disadvantage because of his sexual orientation, said the tribunal. As a result, the complaint was dismissed as the tribunal was not the proper forum in which to pursue the issue.

Employers should keep an eye on managers who may be a little hard on their employees, but it’s especially important to avoid discriminatory behaviour. Employees who are unhappy with their manager aren’t uncommon, but they may be less of a headache than employees who are subjected to discrimination. A little “tough love” might be tolerable, as long as it’s not based in any way to a ground protected under human rights legislation.

But when it comes down to it, unfair treatment is unfair treatment, whether it puts one worker at a disadvantage or everyone suffers equally. Just because it’s not based on a protected ground, an employer could be in trouble if an employee pursues action in a different forum than a human rights tribunal. A lack of discrimination in a manager’s conduct doesn’t preclude behaviour leading to constructive dismissal or harassment.


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