Heated debates can have a risk of harassment and discrimination
Social media, divisive politics, and increasingly aggressive discourse in society have created an environment in which antagonism is more common when certain topics — like politics — are discussed. Sometimes discussions can deteriorate and lead to some unfortunate things being said. This is bad enough when it occurs among people generally, but what happens when it happens at work? What can employers do to smooth out politically charged arguments that could lead to claims of harassment or discrimination?
Never discuss politics or religion in mixed company. That’s a time-honoured rule that many of our grandparents adhered to in a well-mannered attempt to keep the peace while spending time with family, friends, or colleagues who might harbour differing world views. At a time of workplace hyper-sensitivity — where every comment is parsed for potential offence — that advice is still worth heeding.
Indeed, technological advancements and increasingly-democratized communication — from our mobile phones to social media accounts — are empowering employees to speak their mind on a wide range of topics. This is causing headaches for some employers who have been forced to issue repeated reminders that free speech is not without limitations. While an employee may not be sanctioned for speaking freely from an individual rights perspective, doing so can have a negative effect on an employer’s brand. Speaking out on sensitive topics could also raise human rights or discrimination allegations, not to mention potential liability on the employer’s behalf should they be deemed to have condoned the potentially offensive conduct.
Maybe you’ve been there: a colleague at work starts talking about a contentious topic in the news during lunch, another colleague chimes in with a seemingly witty criticism or distaste of the status quo. Maybe the topic is about the young Saudi refugee who received fast-tracked asylum after appealing for help on Twitter, or the Syrian refugee in Kingston who is being investigated by the RCMP for terrorism. Soon there’s a heated group discussion with polarized political views taking place in the lunchroom. Maybe an employee makes a comment to another along the lines of, “Why don’t they just go back to where they came from?” unaware that she is speaking to a colleague who identifies as Middle Eastern.
It can be difficult for many employees to contain their political views when they feel a kinship to their colleagues, and even when they particularly dislike a colleague’s viewpoint and want to disagree with them, in a (hopefully) diplomatic way. The question becomes, can employees even have such discussions in the workplace, without risking being perceived as offensive or discriminatory?
Employer stepping in
This is an important question for business owners, managers and HR professionals who need to understand the extent of the duty they have to step in when political viewpoints are being exchanged in the workplace — particularly when they touch on sensitive, potentially offensive, or inflammatory topics. Further, how can they mitigate legal risks associated with potential discrimination or harassment complaints, the negative impact on morale, or even the threat of increased employee turnover or disengagement should a workplace environment become toxic?
The first step would be for the employer or supervisor to identify a risk of harassment or discrimination. It may not always be the case that a formal complaint is made by an employee. For example, harassment is defined as “engaging in a course of vexatious comment or conduct that is known, or ought reasonably to be known, to be unwelcome” in the Ontario Human Rights Code and similarly in the province’s Occupational Health and Safety Act.
Regarding discrimination, employers have a duty under the Ontario code to treat all employees equally without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, and creed, amongst other prohibited grounds. These grounds of discrimination may be grouped as race and race-related, and although each ground is distinct, there is overlap between them. The social context of an individual is complex and often leads to an intersectional approach to discrimination based on several race-related grounds and non-race-related grounds. This means that inappropriate comments may target multiple protected grounds.
Further, the code stipulates that every employee has a “right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee” because of race-related grounds and other grounds. The language of the code clearly identifies an employer’s duty as extending beyond just itself by including an agent or another employee. Other Canadian jurisdictions have legislation with similar stipulations.
The application of harassment policies isn’t limited to an organization’s employees.
In British Columbia Human Rights Tribunal v. Schrenk, the Supreme Court of Canada affirmed that even third-party contractors can be deemed to have perpetrated workplace discrimination if their work creates a “sufficient nexus with the employment context,” leaving the organization with which they were engaged ultimately liable for their discriminatory behaviour.
If an employer fails to take appropriate steps to address discriminatory comments in the workplace, such as against minorities, the employer could be accused of creating or condoning a poisoned work environment. In other words, a workplace risks normalizing toxic behaviour and comments, irrespective of whether the discriminatory comments are directed at a particular individual or made generally. The potential consequence for employers is not just costly and time-consuming litigation, but also increased employee turnover and decreased productivity affecting many business’ raison d’être — profit.
The Ontario Occupational Health and Safety Act (OHSA) also imposes a duty on employers to maintain a policy on workplace harassment and take steps to address harassment when it is raised, or a complaint is made. Specifically, an employer must create a harassment policy and program reviewed at least annually; provide employees with information about the policy; conduct investigations into all incidents and complaints of harassment; and inform complainants in writing of the results of an investigation and corrective action taken. Again, most other Canadian jurisdictions have similar requirements.
Minimizing the risk
Of course, employers may consider several measures to minimize the risk that office conversations about politics — or any other potentially sensitive topic — do not infringe on legislative obligations to protect employees against discrimination and harassment. For one, employers would be wise to have workplace policies in place that specifically refer to the limits of workplace political discourse. Such a policy would delineate when certain comments will not be tolerated, such as when they target an individual or group of people for their association with a protected ground under the code or the comments may be considered harassment more broadly.
Short of a formal policy, employers may and should also lead by example. Supervisors play a significant role in shaping the culture of a workplace and their tactful involvement in informal office discussions could minimize the risk that employees will veer into risky subject matter. Employers may train their supervisors on not only when to identify situations that may warrant a formal investigation or discipline, but also on how to foster an inclusive environment for all employees by their positive character. Paying close attention to social cues, understanding employee sensitivities, and providing practical guidance to remind employees that they must speak up if they find themselves in an uncomfortable situation, are all important steps to creating an inclusive workplace environment.
Moreover, a culture of shared responsibility also facilitates a respectful workplace. In fact, an Internal Responsibility System underlies the OHSA, meaning that every person in a workplace has a role in maintaining a workplace free of harassment. Such a role means that employees must report incidents of workplace harassment, even if they are not the intended recipient of unwelcome comments. As soon as employees recognize that incidents of harassment and discrimination are as integral to their own health and safety as physical risks, they may feel motivated to protect and preserve their work environment against unwelcome conduct.
Now, back to the issue of employees having such discussions in the workplace and slipping into offensive or discriminatory territory. While it’s not practical or even advisable for employers to attempt to police or prohibit workplace banter, we can agree that seemingly pleasant conversations that turn into negative and exclusionary comments about Code-protected characteristics are not acceptable. That’s why organizations should provide workplace communication training to help employees understand the boundaries of appropriate workplace communications, including the verbal and non-verbal cues which may indicate when a co-worker is uncomfortable with a conversation. At the same time, employees should feel empowered to step up and make colleagues aware if they deem certain topics inappropriate and/or offensive. Employees can and will engage in political commentary at work, but they should be thoughtful and inclusive, and employers must take the lead in protecting their entire workforce. This isn’t about stifling freedom of expression, but to help our teams understand that certain topical themes could be offensive and potentially discriminatory to work colleagues.
It turns out that our grandparents’ golden rule of communication may be as relevant as ever.
For more information see:
• British Columbia Human Rights Tribunal v. Schrenk, 2017 CarswellBC 3506 (S.C.C.).
Ioana Pantis is a lawyer at Williams HR Law in Markham, Ont., where she practices in all areas of management-side labour, employment, and human rights law. She can be reached at (905) 205-0496 or [email protected]