Employment Law Lessons in 2015
2015 was chock-full of many newsworthy employment law stories, but none more so than the issue of sexual harassment. From Jian Ghomeshi and to the Hydro One employee who supported sexist taunts made to a Toronto reporter, sexual harassment was heavily discussed in a way we have not seen since the Clarence Thomas US Supreme Court confirmation hearings. In this post, I reflect on what 2015 has taught us about sexual harassment and workplace lessons for 2016.
Blurred lines between on-duty and off-duty time
Prior to 2015, much of the discussion about an employee’s personal time was centered around the boundaries between work and home (i.e. limiting an employer’s access to an employee after hours). However, 2015 expanded this discussion: this year we learned that in some circumstances, conduct during an employee’s personal time may be subject to employer scrutiny and result in workplace discipline up to termination of employment. In my opinion, this issue is still a very ‘slippery slope’ that needs to be managed carefully – both by employers and employees. What are the workplace lessons for 2016?
- If an employee’s off-duty conduct can negatively impact and/or damage the reputation of your organization, it is important that your contracts and policies & procedures clearly state that discipline or termination may result from conduct outside of work.
- That said, it is important to be very careful about the application of this policy: Employers should not undertake the role of ‘morality police’ and scrutinize the off-duty conduct of all Though this kind of scrutiny may be justified for a high-level employee who is the face of your organization or brand, in my opinion such scrutiny is not justified for most employees.
- Whether it is repugnant social media posts or sexist comments at a Toronto FC game, you might be giving your employer reason to terminate your employment.
- Remember that even if your employer may not have ‘just cause’ to terminate your employment, if you have acted in a way that is likely to disgrace your employer, nothing prevents your employer from terminating you on a ‘without cause’ basis.
Greater Workplace Accountability
In 2015, harassment legislation was reinforced: the Ontario Liberals introduced Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters. When passed into law, Bill 132 will amend the Occupational Health and Safety Act and will impose additional obligations on employers as it pertains to workplace harassment policies, programs, and investigations. Liability for sexual harassment also increased in 2015. In May, Ontario’s Human Rights Tribunal awarded the largest general damages by a Canadian human rights tribunal in a case where two foreign workers, who experienced egregious workplace sexual harassment, won $150,000 and $50,000 each (typically, damage awards in human rights cases do not exceed $25,000.00). What are the workplace lessons for 2016?
- The high damage award in the case above demonstrates that an employer may face serious financial consequences when there are exceptional breaches to the Human Rights Code.
- Bill 132 will be law in 2016, so employers will need to review and assess (and possibly revise) their workplace harassment prevention policies and procedures. All workplaces will need to have a formal complaint and resolution process, which includes the investigation of harassment complaints.
- If you are a victim of harassment, ensure that your employer investigates and addresses your harassment complaint. Know also that even if you use an internal workplace complaint procedure, nothing prevents you from bringing a harassment complaint externally under the Human Rights Code or Occupational Health and Safety Act.
- Remember also that as an employee, you are responsible for maintaining a respectful and professional workplace. In addition to being terminated for ‘just cause’ by your employer, under human rights legislation, you can be held personally liable and have to pay damages if you are found to be a perpetrator of harassment.