With antisemitism on the rise, employers can't 'bury their heads in the sand'

In early February, 14 Jewish members of the Public Service Alliance of Canada (PSAC) filed human rights complaints against their union, claiming it has been “advancing an anti-Israel agenda and causing a culture of discrimination and harassment against Jewish PSAC members.”

The union’s actions are “causing an environment of fear, hostility, alienation, and bias,” said Daniel Lublin, founding partner of Whitten & Lublin Employment Lawyers, which is representing the Jewish members.

Reports of hostility between those supporting and those opposing the Israel-Hamas conflict since Oct. 7 have filled headlines for months – and antisemitic incidents are on the rise in several Canadian cities, according to media reports.

Canada has the fourth largest Jewish community in the world, with a population of over 390,000, and Richard Marceau, vice-president, external affairs & general counsel, at the Centre for Israel and Jewish Affairs (CIJA), says he’s hearing more complaints about antisemitism in the workplace.

It’s an issue an employers should not take lightly, he says.

“For both legal and I would argue also for morale reasons, you don't want to have a festering racist environment and have to manage this... cut it out from the beginning.”

Defining antisemitism

When it comes to clarifying or understanding what constitutes antisemitism, the federal government, as well as Quebec, Ontario, B.C., Manitoba and Alberta have identified a definition that was drafted by the International Holocaust Remembrance Alliance (IHRA), says Marceau.

Examples include:

• “Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion.
• “Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective…
• “Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.
• “Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the genocide of the Jewish people at the hands of National Socialist Germany and its supporters and accomplices during World War II (the Holocaust)…
• “Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.
• “Drawing comparisons of contemporary Israeli policy to that of the Nazis.
• “Holding Jews collectively responsible for actions of the state of Israel.”

While it's a non-legally binding definition, it's a good indication of what the Canadian government and the Ontario government and other provinces would see as antisemitism, he says, “so I would suggest that different employers make themselves familiar with the IHRA definition, because it's a good starting point on how to identify if something is potentially antisemitic or not.”

Of course, social media is a huge venue for this behaviour. Of the 2,769 total incidents of antisemitism recorded in Canada in 2022, 2,056 – or 74.3% – occurred online, according to B’Nai Brith Canada.

Freedom of speech or hate speech?

In looking into claims or incidents of antisemitism, employers and HR may be told the individual is practicing their freedom of speech. But freedom of speech does not include hate speech, says Marceau, and while someone’s behaviour might not reach the level of hate speech as defined in the Criminal Code, that doesn't mean that it's not antisemitism, “triggering the duty to investigate,” he says.

“It's not necessarily a criminal matter, but that doesn't mean that it does not rise to the level of being harassment in the workplace.”

And that includes off-duty or off-site behaviour, says Marceau, stressing the importance of HR having a social media policy along with an anti-harassment policy.

“That would help HR professionals deal with subjects that sometimes can be trickier because the line is sometimes blurry about what happens online, off-hours and what happens in the workplace. And sometimes it's hard to make the distinction between the two.”

There’s never been a time where off-duty conduct has been more relevant, says Lublin.

“That's one of the things where... free speech does not equate to freedom from workplace consequences.”

As for banning political conversation at work, it’s unclear how employers would implement or enforce such a ban, says Lublin.

“I don't think it could reasonably be done… I don't see this country going down that path. And I just don't think it'd be feasible.”

Marceau says that kind of approach would lead to “complicated waters,” but he does recommend that HR send out regular reminders about the importance of employees complying with these policies.

Legal considerations around antisemitism

In Canada, employers are legally obligated to maintain safe workplaces, and that includes investigating reported occurrences of antisemitism, he says.

In Ontario, there's both the Ontario Human Rights Code and the Ontario Occupational Health and Safety Act that would apply, and the rules are “quite stringent,” he says.

“They both prohibit discrimination and harassment based on certain protected grounds, including ethnic origin, place of origin and creed, which would mean in this case all those would apply to Jews.”

And an employee could file a complaint under the workplace safety laws or the human rights laws, says Marceau.

“They're not necessarily mutually exclusive. That would be for the person to look into [as to] which way, presumably with legal counsel, was preferable in her or his position.”

Investigating allegations of antisemitism

Ontario’s Health and Safety Act obliges an employer to investigate “incidents and complaints of workplace harassment.”

There's no need to have a formal complaint brought forward, says Marceau.

“Any complaint of antisemitism or hearing that there's an antisemitism incident triggers the employer’s duty to investigate.

“So it's not something to take lightly, because a failure to investigate can lead to an independent investigation by the Minister of Labour, which is not something that an employer would want.”

The format of the investigation is also not prescribed in law, he says.

“I always say to different employers that they might as well be thorough, because if they fail to properly investigate — and that means a report being produced, with the conclusions being given to the potential harasser and the potential harassee… you don't want to ever be called out for having failed to investigate a potential issue of harassment.”

The problem? Many employers are aware of the problem but are “burying their heads in the sand because they don’t know what to do, or they don’t want to do anything about it,” says Lublin.

“I think there's a fear of offending one side or the other; I think there's a neglectful approach to explaining away the lack of action, because it's a political issue and not a workplace issue.”

There is a double standard being applied by many companies when it comes to enforcing policies, he says.

“Things that anybody else would be investigated for, would be put off on suspension or terminated for, other types of incidents, when Jewish employees complain that they are facing discrimination, hatred or differential treatment, it's not being taken as seriously.”

Disciplining racist behaviour

Finally, a big consideration for employers is how to respond after a finding of antisemitic behaviour.

In many circumstances, employers are entitled to discipline or even terminate an employee “who has shown discriminatory or racist misconduct, in the workplace or online, if it harms the employer’s reputation and standing, or its ability to manage its workplace,” says Marceau.

These days, in any context, if people say the wrong thing or offend someone based on a personal characteristic — especially with individuals from various backgrounds — almost certainly it results in departure from employment, says Lublin.

“Sometimes it's considered misconduct and it's cause for dismissal, and other times it just results in severance. I see so many terminations of employment for individuals who are accused because it's such a bad look, and companies don't want to be seen as condoning it. And companies want to be seen as putting an end to all forms of hate and discrimination.

“If you follow the trend over the last couple of years, companies really take a zero tolerance approach to discriminatory behaviour, they really do… however, with the current situation, many Jewish employees feel that their employers are not applying the same approach when it comes to addressing their concerns”.