'She ought to have known that you can't make comments like that in a modern workplace,' says lawyer
“It's important for employers to the concept of unwelcome behaviour in their policies and the fact that it is an objective standard rather than subjective - whether somebody didn't think it was unwelcome isn’t appropriate, it's whether objectively, it's unwelcome.”
So says Timothy Mitchell, a labour and employment lawyer at McLennan Ross in Calgary, after an arbitration board upheld the firing of an Alberta hospital worker for a pattern of harassing behaviour that targeted a colleague’s race and sex.
“You can't just have a static policy, collecting dust on the shelf - it's important that, at least on an annual basis, the employer is training on harassment in the workplace,” says Mitchell.
The worker was a respiratory therapist at the Alberta Children’s Hospital in Calgary, operated by Alberta Health Services (AHS). She was hired around 2006 and had no discipline on her record.
The worker occasionally worked with a particular colleague at the hospital, who was the only Asian male respiratory therapist there.
There’s a massive business case for an effective, proactive, and zero-tolerance approach to workplace bullying and harassment, says a lawyer.
More frequent interaction
In January 2021, the worker accepted a temporary placement that put her on the same line as the colleague, so they ended up working together frequently for about six weeks. The regular contact resulted in more interaction, and, although they had a friendly relationship previously, the colleague began feeling uncomfortable about various comments that the worker made towards him.
According to the colleague, the worker: repeatedly compared a small pen he used to the size of his genitalia or inferred that male Asians had small genitalia; compared a small lunch bag he used to his genitalia and again commented about Asian genitalia; repeatedly called him “Asian Sensation,” a nickname he didn’t like; referred to him by his race instead of his name; and repeatedly made jokes about his ability to speak English in front of colleagues and students. He said the jokes about his English went from being a joke to making him feel targeted and undermined in front of students.
The colleague said that he never directly confronted the worker, but he started saying that it was enough, to which the worker would laugh and tell him not to take it so seriously.
The colleague pointed out to the worker that she had a different approach to jokes and banter when she was in a clinical educator role and told her that the nickname was weird and “sounded like porn.” He also asked her to watch a Chinese-American standup comedian who addressed stereotyping. When nothing changed, he stopped engaging in the banter and tried to avoid her.
Four other employees agreed that the worker made direct or implied “sexualized racist comments” about the pen several times and heard her refer to the colleague by the nickname and as “the Asian.”
Nearly two-thirds of Canadians experienced at least one behaviour or practice of harassment and violence at work, according to a survey.
Frustration boiled over
On Feb. 13, the colleague and another employee were in the hospital’s blood gas lab. The colleague had his back to the door and didn’t hear the worker enter because the machines were loud. The worker pushed a chair towards the colleague, which hit chair with a loud sound, startling both the colleague and the other employee.
The colleague turned around and saw the worker laughing. He believed that she was making fun of him again and his frustration about her pattern of behaviour towards him boiled over. He got upset, telling her that “enough is enough” and that it wasn’t funny anymore. The worker was surprised and she left to let him calm down. The next day she apologized, but the colleague felt it was vague and didn’t acknowledge her ongoing sexual and racialized comments.
The worker acknowledged that she made jokes about the size of the colleague’s pen and lunch bag, but she said there was no sexual or racial connotations. She also said that she meant the nickname to be a term of endearment - she had nicknames for other co-workers, although none were related to race or other personal characteristics. She also claimed that the jokes about his English were consensual and similar to herself saying she had “mom brain,” although she acknowledged that she made them in front of colleagues and may have in front of students.
As for the chair incident, the worker said she was trying to be playful and the colleague had engaged in horseplay earlier that day. She claimed that the sound from the impact was louder than anticipated and it startled her as well.
An employer had just cause to fire a long-service worker who harassed a co-worker, an arbitrator found.
Worker minimized conduct
The three-member arbitration panel found that the colleague’s version of events was more credible, as he was forthright and other witnesses corroborated it. The worker’s account was too different from what the worker and other witnesses presented, said the panel, adding that the worker was “motivated to recall events in a way that minimized her conduct.”
“I think the [panel] really struggled with the manner in which the [worker] characterized these incidents - she was just joking, she thought she was good friends with the [colleague], and that he had not told her to definitively stop – it was effectively her defense to why she continued in her pervasive conduct,” says Mitchell. “The [panel] noted five or six examples of where, through the manner in which the [colleague] responded to some of these jokes, that it should have been obvious that they were in fact unwelcome.”
The panel characterized the chair incident as “a deliberate physical act” that was “part of a pattern of targeting the [colleague] and an escalation of the [worker’s] previous harassing behaviour.” It also found the worker’s claim that they had engaged in horseplay not credible, as it was inconsistent with what the colleague and witnesses described. The colleague’s reaction to the incident was consistent with someone who couldn’t take the harassment anymore, not someone willingly engaging in playful banter, said the panel.
The panel found that the worker’s conduct involved “daily demeaning sexualized racist comments over a six-week period” that culminated in the chair incident, was objectively serious, and undermined the employment relationship. The worker targeted the colleague and created a poisoned workplace for him, said the board.
Employers need to clarify the reporting process for harassment complaints, according to a lawyer.
Conduct objectively unacceptable
The panel found that the worker ought to have known that her conduct was unwelcome. She didn’t seem to pick up on the cues in the colleague’s responses but, regardless, her harassing behaviour was objectively serious and “has no place in any modern workplace, let alone at a children’s hospital by a health professional,” the panel said.
“If we look at this conduct on an objective basis, even if [the worker] didn't think it was unwelcome, she ought to have known that you can't make comments like that in a modern workplace,” says Mitchell. “The board was quick to dismiss any type of union argument that this was merely shop talk as a defense.”
The union argued that the comments weren’t serious because they were microaggressions, but the board found that microaggressions can have a significant impact with a cumulative effect – as they did with the colleague, who became stressed and less confident at work and at home.
Considering the seriousness of the worker’s conduct along with its repeated and escalating nature, its effect on the colleague, the fact that AHS had respectful workplace policies on which the worker had been trained, and the worker’s lack of insight into her misconduct along with her attempts to downplay it, the board determined that the worker had “low rehabilitative potential.” Even though she had 15 years of service with no prior discipline, AHS was entitled to skip progressive discipline and terminate the worker’s employment, said the board.
It's a good decision for employers that belays traditional arguments that are sometimes made that others are doing it and such teasing can be considered friendly banter, says Mitchell.
“The [panel] did a really good job of distinguishing one-off shop banter as compared to pervasive conduct that is reprehensible in a modern workplace,” he says. “I think it reinforces the need to continually, or at least on an annual basis, review harassment policies and ensure that they're up to date and starting to address concepts such as microaggressions, when a microaggression will be considered to be harassment, and where it's not simply a one-off but pervasive conduct.”
