December 3, 2015
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All workers are entitled to equal rights and opportunities in the workplace without discrimination or harassment. While sexual orientation is not specifically defined in the Ontario Human Rights Code, the Ontario Human Rights Commission recognizes that it is, of course, an immutable personal characteristic that forms a part of the person’s “core identity”. The Code also extends to gender identity protection, prohibiting discrimination faced by transsexual, transgender and intersex individuals. The Courts and arbitrators have clearly recognized the historical disadvantage often experienced by lesbian, gay and bisexual people, including within the workplace. Unfortunately, as recent decisions illustrate, these challenges and disadvantages continue within the workplace. However, the courts and arbitrators have demonstrated a complete lack of patience for such discrimination, and for management’s sometimes lacklustre response.

Anti-Gay Harassment

Recently, the issue of employer liability for anti-gay harassment arose in the decision Renfrew County and District Health Unit v Ontario Public Service Employees Union, Local 487. In that case, the grievor, who was gay, experienced workplace harassment by his colleagues, who were making crude and insensitive statements related to a public health policy pamphlet concerning oral sex. The grievor was initially bewildered when he overheard colleagues discussing and laughing about a pamphlet entitled “Use Your Head – When Giving It, Blow Job Tips”, published by the Aids Committee of Toronto. The arbitrator found that the tone of the conversation was anything but professional. Instead, it expressed clear disgust, disdain and disapproval of homosexual activities. The discussion was homophobic and hostile.

The grievor felt hurt and disrespected. He initially confronted his colleagues, but faced further ridicule. The grievor received no support from his manager. When the manager of the unit finally became involved in the altercation, he chose to berate the grievor and chastise him about “family values”. The grievor felt uncomfortable and further disrespected, and left the workplace for the remainder of the day. Shortly after, he filed a grievance stating that the remarks hurt him and that he was entitled to a “gay positive” work environment.

In his decision, Arbitrator Parmar relied upon the anti-discrimination clause of the collective agreement and section 5 of the Ontario Human Rights Code prohibiting discrimination. The arbitrator recognized that the obligation to ensure a healthy and inclusive work environment ultimately rests with the employer. Management has an obligation to not condone or further a discriminatory act that has already taken place. Management will be responsible for harassment carried out by its employees if it was aware of the harassment, or the harasser is a part of management. The arbitrator concluded that the conversation was wholly inappropriate and not related to any proper work discussion within the health unit. The statements were demeaning to gay people. The conversation was therefore discriminatory, and violated the collective agreement and the Ontario Human Rights Code.

Management Liability

When assessing management’s response, and whether it reasonably satisfied its human rights obligations, the arbitrator considered:

  1. Awareness of issues of discrimination/harassment, policy, complaint mechanism and training
  2. Post-complaint: seriousness, promptness, taking care of its employee, investigation and action
  3. Resolution of the complaint and communication

An employer has an obligation to act appropriately before discriminatory conduct in the workplace occurs, during the management of a complaint of discriminatory conduct, and at the conclusion of a complaint of discrimination. In this case, management failed on all fronts:

  • Although a discrimination policy existed, no steps were taken to ensure workers’ understanding;
  • Management failed to conduct an adequate investigation;
  • Management took no steps to constructively address and resolve the grievor’s concerns, but rather acted dismissively.

As a result, the arbitrator held that the conduct was discrimination based on sexual orientation, and management was liable for the conduct of its employees. The employer was ordered to pay the grievor $9,000 in human rights damages, and to further develop anti-discrimination policies and training programs.

Considerations

Section 5 of the Ontario Human Rights Code includes the right of every worker to equal treatment in their employment without discrimination because of sexual orientation, gender identity and gender expression. Despite these protections in the legislation, harassment and discrimination continue to be pervasive in our society and at work. As seen in this decision and others, labour arbitrators will not tolerate harassment or discrimination on these grounds, and have shown a willingness to take a strong and purposive approach to eliminate intolerant and hateful behaviour in the workplace. Arbitrators have also sent a strong message to management: they must take a firm approach to ensuring a safe and positive work environment for all workers, regardless of sexual orientation or gender identity, or else they risk being held liable for the objectionable behaviour of their employees.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law