Poisonous, intolerant workplace should be corrected: Arbitrator

On Ontario worker was subjected to both sex and racial discrimination by a colleague who brought a sex toy to work, an arbitrator has ruled.

The worker, an African-Canadian woman, was a corrections officer for the Ontario Ministry of the Solicitor General. She taught a refresher course in defensive tactics at a women’s correctional institution.

The worker was leading a training session in 2014 with a male co-trainer. Her colleague brought an adult sex toy as a gag birthday present and showed it to a co-worker attending the session. The worker took offence because it was black and shaped like a phallus.

The co-trainer was the lead instructor and had many allies at the institution, so the worker was reluctant to report the incident. She asked for a transfer to the Ontario Correctional Services College, but the program coordinator told her to report the incident to her chain of command.

The worker filed a workplace discrimination and harassment complaint (WDHC), also citing instances of comments and sexual innuendo between the trainers and the participants.

The co-trainer apologized for his behaviour, saying he hadn’t meant to offend anyone and he “sincerely” regretted that it upset anyone.

However, word about the WDHC spread and allies of the co-trainer began filing numerous occurrence reports (ORs) against the worker, claiming she had engaged in bullying, harassment, and other inappropriate behaviour. One filed a workplace violence complaint that claimed the worker threatened her.

The ministry found the workplace violence complaint and many of the ORs were without merit, dismissing several ORs without telling the worker about them.

The investigation concluded in January 2015 and found no evidence that the sex toy being black had racial connotations. It found that the co-trainer had engaged in sex discrimination and a poisoned work environment, but the worker had been complicit in the conduct in the training sessions and had contributed to the poisoned work environment. The ministry suspended the worker for eight days for not upholding the level of professionalism expected of “an employee of the Ontario Public Service, a correctional officer and, more importantly, a defensive tactics instructor.” The co-trainer was also disciplined.

By 2016, the worker and the co-trainer had been assigned to separate working areas. However, on April 26, the worker was assigned to the co-trainer’s area and she asked the supervisor about it. According to the worker, the supervisor berated her and she reported it to the deputy superintendent. The co-trainer filed ORs about the worker being in his work area.

The union filed two grievances claiming harassment and bullying with racial and sexual elements and that the ministry had failed to follow protocols by scheduling her with the co-trainer after they had been separated.

The arbitrator found that management had “turned a blind eye” to the turmoil at the institution that led to the sex toy incident and the numerous ORs. The arbitrator also disagreed that there was no racial element.

“A white man producing a black dildo in the presence of a racialized woman at a training course in a women’s corrections institution is discrimination on the basis of race or colour as well as sex,” said the arbitrator.

The arbitrator found that the incident was a violation of the collective agreement’s prohibition of discrimination and that management breached another collective agreement article requiring the employer to “make reasonable provisions for the safety and health of its employees” when it failed to investigate some of the ORs or inform the worker about them. In addition, management failed to advise supervisory staff of the decision to keep the worker and the co-trainer apart, causing the worker to be assigned to the co-trainer’s area.

The arbitrator allowed the grievances and ordered the ministry and the union to negotiate an appropriate remedy.