Nothing funny about bin Laden joke (Legal view)

Employers have an obligation to provide a workplace free from harassment of any kind

Stuart Rudner
A recent decision by the British Columbia Human Rights Tribunal provides a useful reminder that employers have an obligation to provide a workplace free from harassment of any kind. While every workplace has its own culture, and some groups will have more tolerance for behaviour others would find offensive, the fact is once an employer knows, or ought to have known, inappropriate and harassing behaviour is taking place, it has a duty to deal with it.

The recent case involved workers at the Richmond Autobody Ltd. shop in North Vancouver. The workplace was a blue-collar atmosphere, where off-colour jokes and even racial slurs were not uncommon. Much of this behaviour was tolerated and even accepted by the employees, who engaged in such practices to provide some form of relief during long hours of physical labour.

However, the case addressed behaviour that crossed the line and became harassment. Specifically, it involved what the tribunal found to be a campaign of harassment against Shahram Dastghib, an immigrant who had been considered one of the best painters in the shop. The end result of this campaign was he was dismissed after losing his temper while at work. The reason for his anger? The persistent and extreme harassment, which took a dramatic turn for the worse after the Sept. 11 terrorist attacks.

Soon after Sept. 11, comments and posters labelling Dastghib a terrorist and a supporter of Osama bin Laden became the norm. What is particularly shocking is these actions were not only perpetuated by co-workers, but also by his managers.

According to the findings of the tribunal, prior to Sept. 11, Dastghib would be called names clearly based on his background such as “Shahram Hussein,” “camel rider” and “Baboo.” However, after Sept. 11, Dastghib would often be referred to as “bin Laden.” His manager frequently called him by this name over the loudspeaker.

In addition to this name-calling, Dastghib’s manager also hung a poster in the lunchroom which suggested he:

•was a terrorist;

•was “wanted dead or alive”;

•dressed in drag;

•had been indicted for a bombing;

•had previously been arrested as a street hooker, a bestiality pornographer and for selling beer to children; and

•had committed all of these crimes due to his love for Osama bin Laden.

The evidence before the tribunal was that Dastghib had repeatedly asked his managers to stop calling him names, to no avail. He testified these “jokes” caused him to have difficulty sleeping. He was known as one of the best employees and was the highest-paid painter in the shop. He testified that, although he loved his job, the ongoing harassment made him hate going to work.

The tribunal also heard Dastghib had anger-management issues and had been disciplined as a result. However, it found the harassment exacerbated circumstances and his termination, which followed a heated argument, was the result of the ongoing inappropriate behaviour. As a result, this discrimination was a factor in the dismissal.

Ultimately, the tribunal gave the parties two months to see if they could agree upon a mutually acceptable financial settlement. Otherwise, one would be imposed.

While this case offers an extreme example of harassment, employers should bear in mind that even innocuous circumstances can be violations of human rights legislation, which generally provides that employees have a right to freedom from harassment in the workplace by the employer, agent of the employer or by other employees, based upon grounds enumerated in human rights legislation.

It’s not just sexual harassment employers must prevent — any form of harassment based upon the prohibited grounds must be addressed. Furthermore, other forms of harassment can lead to a finding of constructive dismissal, even if not prohibited by human rights legislation.

In order to protect themselves, employers should ensure they have a policy that makes it clear, in no uncertain terms, harassment will not be tolerated.

When complaints of harassment are lodged, employers should respond quickly and effectively to investigate and, where the complaint is justified, ensure the situation is remedied and such activity is prevented in the future.

Employers must remember they are responsible not only for the actions of supervisors and managers, but also for the actions of co-workers. In some cases, employers can even be responsible for the harassing behaviour of non-employees.

Having and disseminating a good harassment policy and having an effective system to deal with complaints will go a long way in preventing and dealing with workplace harassment.

Stuart Rudner is a partner who practices commercial litigation and employment law with Miller ¬Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or [email protected].

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