An Ontario arbitrator has ruled that a single unwelcome comment constituted harassment under the province’s Human Rights Code.
A concrete mixer of Italian descent, employed by Prestressed Systems Inc., alleged his rights under the code were violated when his supervisor directed a racial slur towards him.
The grievance arose after the worker failed to hear an order communicated over a two-way radio placed by his supervisor. When he told the supervisor he had not heard the order, the supervisor responded with profanity, called him an immigrant and said “You want me to come up there and teach you how to speak English?” The supervisor insisted he did not intend to offend the worker and was “just kidding.”
Many of his co-workers were aware of the incident. The Labourers’ International Union of North America argued the comment was insulting to the worker and an attack on his immigrant status. The employer argued a single isolated incident does not amount to harassment under the code.
Comment was obviously unwelcome
Arbitrator Howard Snow determined that, in some circumstances, more than one comment is required for a person to know the comment is unwelcome. However, the arbitrator said the supervisor’s single comment to the worker in this case was known, or ought reasonably to have been known, to be unwelcome. Arbitrator Snow also found the supervisor’s comment was disturbing and annoying and, as such, the comment was vexatious.
The arbitrator accepted that vexatious comments or conduct will often need to be repeated to constitute harassment given that the code requires a “course” of comment or conduct. However, he rejected the idea that legislators could have intended that a comment such as that made by the supervisor, “which so obviously referred to the (worker’s) ancestry, place of origin and ethnic origin, and which was vexatious and unwelcome,” would have to be repeated to constitute harassment. As such, he said the supervisor’s single isolated comment violated the worker’s right to a workplace free from harassment under the code.
As a remedy, Arbitrator Snow issued a declaration in respect of the employer’s violation of the code. He also ordered the supervisor to provide the worker with a written apology. Notably, he did not find it appropriate to award damages.
While some decision-makers have expressly rejected the notion that a single incident can constitute harassment under human rights legislation, others have suggested that, in certain circumstances, a single incident or comment could violate an employee’s right to a workplace free from harassment.
A warning to employers
Arbitrator Snow’s decision is a warning to employers to be cautious of conduct or comments in the workplace that could be offensive or misconstrued. Harassment is defined in Ontario’s code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
Nonetheless, the decision suggests the more offensive, serious and egregious the comment or conduct, the less need there is for it to be repeated to violate a worker’s rights. It remains to be seen whether other decision-makers will adopt Arbitrator Snow’s view.
This decision could have far reaching effects in many different workplaces. A single isolated incident or comment, regardless of whether it is intended as a joke, may be sufficient to find the employer liable. An intention to offend, discriminate or harass is not necessary to find that a violation has occurred.
A proactive approach is recommended to reduce the likelihood that employees will breach the code. Educating employees about the code and the respect and dignity for others it seeks to protect, contributes to a workplace free of discrimination and harassment and reduces the likelihood that a breach of the code will occur.
Harassment is a form of discrimination based on a person’s race, sex, colour, ancestry, place of origin, ethnic origin, marital status, same sex partnership status, sexual orientation, age, disability, citizenship, family status or religion. Harassment can include conduct or comments that are offensive or insulting, racial slurs, jokes, teasing and degrading pictures or cartoons.
When an employer receives a complaint of harassment in the workplace, it has an obligation to investigate the complaint thoroughly and diligently. Guidance on conducting an investigation can be obtained from human rights commissions.
An employer can implement several initiatives to raise awareness in the workplace regarding human rights and to reduce the likelihood the employer will be found liable for a violation of the code. Holding periodic seminars informing employees of a human rights policy and posting material on human rights in common areas are effective ways to increase employees’ awareness about human rights in the workplace.
For more information see:
Prestressed Systems Inc. v. Labourers’ International Union of North America, Local 625
(Venosa Grievance) (Sept. 16, 2005) (Snow).
Natasha Savoline is an associate specializing in labour and employment law with Filion Wakely Thorup Angeletti LLP in Toronto. She can be reached at (416) 408-5511 or firstname.lastname@example.org.