Microaggression and subtle sexism: hidden risks for Canadian employers

Canadian workplaces continue to face challenges from behaviours that may seem minor but, over time can evolve into serious legal risks.

As a recent B.C. Human Rights Tribunal case has determined, even small, hard-to-spot sexist behaviours, if looked at as a whole, can add up to a pattern and be found to be discriminatory.

The case centres on a female employee’s claim that she was subjected to sexist treatment during her employment in a traditionally male-dominated trades environment. She alleged that her work colleagues, two in particular, engaged in conduct that belittled her because of her sex.

“In some jobs and occupations, it becomes so normalized that not even those who are on the receiving end may be able to recognize that what they're experiencing might be bullying or … sexual harassment,” says Adriana Berlingieri, research partner and adjunct professor with the Centre for Research and Education on Violence Against Women and Children at Western University.

Unchecked microaggression patterns cost employers money

As this case demonstrates, a failure to recognize subtle forms of abuse – otherwise known as microaggressions – can result in lengthy litigation when employees eventually claim discrimination.

Workplace harassment can also be costly in the form of lost labour, says Berlingieri.

“When you think of absenteeism, presenteeism, sick leave, stress leave, people leaving early or arriving late, it's just so many costs that over time, if we take all the forms of harassment and violence at work and we put them all together, it costs workplaces billions of dollars.”

To prevent similar claims, Jenson Leung, employment lawyer at KSW Lawyers in Vancouver, advises organizations to be cognizant of the daily interactions of employees, particularly in environments where power imbalances or gender disparities are present.

“If an employer is turning a blind eye to a situation, or if they are hearing complaints but not doing anything about it, they're likely going to have more legal exposure than if they are essentially blindsided by a complaint that they had no way of knowing what's coming,” he says.

Source: www.itsnotpartofthejob.ca

Policies with teeth to prevent discrimination claims

While the decision dismissed some claims – such as those related to wage reductions and employment termination – it clearly upheld the findings of discrimination based on microaggressions.

The tribunal also found the employer did not fail to create a discrimination-free environment since the managers and owners of the company were not aware of the treatment. It did, however, order a $6,000 award for compensation for injury to the employee’s dignity, feelings and self-respect.

Citing past case law, the tribunal detailed in its decision the following factors used to determine the amount of compensation, which include:

• Time and nature of the discrimination.
• Period and frequency of the discrimination.
• Vulnerability of the complainant.
• Impact of the discrimination upon the complainant.
• Totality of the relationship between the complainant and respondent.

While policies are crucial to address discrimination claims, Berlingieri points out not all are created the same, and policies that aren’t enforced aren’t followed.

“You have to have a policy with teeth,” she says.

“It has to be comprehensive. It has to include the behaviours that are acceptable or not. It has to include the consequences for engaging in abusive behaviour. It has to be a part of a supervisor or manager’s job to address when they see or hear about … informal disclosures of harassment and violence.”

Source: www.itsnotpartofthejob.ca

Policies should also address an employee’s fear of retaliation – a common reason for harassment going unreported. This is true even with the legal obligation employers already have to not retaliate.

“Spelling that out in the policy itself can help reinforce that and hopefully make it more likely that employees will feel comfortable approaching HR about those issues,” Leung says.

What causes a pattern of microaggression?

Patterns of harassment and microaggression can’t be changed just by policies – understanding what is causing the patterns in the first place is vital for any effective prevention strategy, explains Jason Walker, program director and associate professor at Adler University in Vancouver.

“Culture eats strategy for lunch. A negative, toxic culture is the perfect breeding ground for bad behaviour.”

This type of culture also discourages employees from sticking up for each other, further exacerbating the problem, he says: “The bystander effect – hesitating to intervene – is commonplace. People don’t want to be the next target, and the lack of intervention – the inability or fear of speaking up – continues to fuel this behaviour.”

Culture of intolerance strengthens worker harassment policies

Acknowledging this common barrier to employee reporting of subtle harassment, Leung agrees that fostering a culture of intolerance of bullying and other abusive behaviour can help employers prove they made every effort to create a safe environment.

This does, however, require equal treatment of all employees and buy-in from all levels of the company to be truly effective.

“An HR department can't do that alone. There needs to be buy in at the organizational level,” says Leung.

“And the main way that an organization can start changing culture after implementing proper policies is to consistently enforce those policies. In other words, it's a lot more effective to say that they have a policy against bullying and harassment if they don't sweep it under the rug just because someone is a high earner for the company.”

However, Berlingieri stresses that the process of shifting a culture away from encouraging patterns of abuse is a multi-factor process that must also happen organically and on the ground as incidents occur.

As she explains, these moments present a valuable “window of opportunity” for training managers and staff about how to address inappropriate behaviour in real-time, and how to talk effectively about workplace abuse.

“If we, as workplaces and employers, if we rely exclusively on formal reporting, it may be too late,” she says.

“They need that specialized training, to be able to recognize when those kinds of behaviours are occurring … how can we see those as opportunities, if you will, to intervene early before the escalation of those kinds of behaviours and before the damage is done.”