Can any gossip lead to harassment?
Question: Can co-workers gossiping about another co-worker be harassment? What if the gossiping isn’t necessarily insulting, but the employee who is the subject of the gossip is bothered by it and has asked the employer to put a stop to it? What can the employer do if the gossiping employees don’t stop after a warning?
Answer: Canadian employers have an obligation to provide a safe and respectful work environment, that is free from harassment and discrimination.
Workplace gossip, depending on its frequency and severity, can constitute harassment and in addition to negatively impacting morale, productivity and attendance, can expose an employer to potentially significant legal liability.
Gossip directed at a specific individual or group is a form of workplace bullying and is often accompanied by other objectionable tactics such as exclusionary behaviour, insults, intimidation and insubordination.
Where gossip pertains — or is reasonably perceived to pertain — to a ground that is protected under human rights legislation, the employer may find itself named as the respondent in a human rights complaint and may ultimately become liable for lost wages, damages for injury to dignity, feelings or self respect, and other remedies that may be available.
Human rights tribunals have held that workplace harassment based on a protected ground constitutes discrimination in employment. As a result, an employer’s duty under human rights legislation not to discriminate in employment includes an obligation to provide a workplace that is free from harassment based on protected grounds.
Workplace gossip can also give rise to a constructive dismissal claim at common law if the employee who is the subject of the gossip occupies a management or non-union position. In such circumstances, the employee may be able to claim the employer’s failure to stop the gossip created a hostile work environment that made her continued employment untenable. This could expose the employer not only to wrongful dismissal damages, but also — depending on the severity of the behaviour and its impact on the employee — to aggravated or even punitive damages.
In unionized workplaces, workplace gossip can result in a grievance under the human rights or personal harassment provisions of the collective agreement. In addition, arbitrators, such as the one in Burnaby Villa Hotel, have found that even in the absence of specific collective agreement language, an employer has an implied obligation to provide a workplace free from personal harassment, meaning “objectionable conduct or comment directed towards specific person(s), which serves no legitimate work purpose, and has the effect of creating and intimidating, humiliating, hostile or offensive work environment.”
There are various safeguards employers can put into place to prevent workplace gossip from having harmful and potentially expensive effects on the workplace. A good first step is the creation of harassment policies covering discrimination on the grounds protected by human rights legislation. To be effective, such policies should contain clear definitions of the types of behaviour that are prohibited, as well as a procedure under which affected employees can have their complaints dealt with in a timely, effective and confidential manner.
Training is an important component of a harassment prevention program, as it assists employees in understanding the types of behaviour that are and are not acceptable, and it can also help managers and supervisors recognize warning signs so appropriate steps can be taken before problems escalate.
Where harassment occurrs despite an employer’s preventative efforts, the usual array of corrective and disciplinary tools are available to the employer. In some cases, a simple conversation with the employees who are engaging in workplace gossip may be sufficient to address the problem, by helping them understand the potential effects of their behaviour. In other situations, a more formal approach may be required, involving a letter of expectation, a written warning or some other form of disciplinary action.
For more information see:
•Burnaby Villa Hotel,  B.C.C.A.A.A. No. 147 (McEwen-Arb.).
Colin G.M. Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or email@example.com.