Harassment and the Toxic Work Environment: Examining rights and remedies

Under human rights law and occupational health and safety legislation, the atmosphere of a workplace is a “term or condition of employment” just as much as explicit terms such as hours of work or rate of pay. Thus employers have a duty to take reasonable steps to provide a harassment-free workplace and can be held legally liable for failing to do so. In this session, a panel of Lancaster’s experts will discuss practical strategies workplace parties can employ to identify and eradicate harassment, as well as remedies adjudicators will order to address harassment and poisoned work environments.

• Protection from harassment and poisoned workplaces: How is harassment defined under human rights law? What types of behaviour meet the legal definition of harassment? Can a single incident amount to harassment? In what circumstances has off-duty or off-site behaviour been found to be harassment prohibited under human rights law? What obligations are imposed on employers to ensure a harassment-free workplace under occupational health and safety legislation? What is the difference between a workplace in which some harassment has taken place or in which a human rights violation has occurred, and a “poisoned work environment”? Is there a legal distinction? If a workplace is “poisoned,” does that always indicate a systemic problem/systemic discrimination? Does the characterization make a practical difference in terms of remedies and responses?
• Investigating and responding to harassment complaints: Do employers have a legal obligation to investigate every allegation of harassment? Can an employer be held legally liable for failing to undertake an investigation or for conducting a flawed investigation, even where the underlying allegation of harassment turns out to be unfounded? What criteria do human rights tribunals consider when assessing the reasonableness of an employer’s response to a harassment complaint? What policies and procedural protections (as to confidentiality, reprisal etc.) should be put in place for the employee subject to investigation, as well as for complainants and witnesses? What steps should employers take to support an employee who brings forward a harassment complaint? Is an employee entitled to paid leave while his or her harassment complaint is being investigated? When can an employee refuse to work on the basis of harassment concerns? What role should the union play in the process of reporting and responding to harassment complaints? How can unions deal with member-on-member harassment complaints without violating their duty of fair representation?
• Prevention: What are an employer’s obligations to monitor and detect workplace harassment? How can an employer ensure that employees subjected to harassment or a poisoned work environment are not afraid to voice their concerns? What are key components of an effective anti-harassment policy? How often should an anti-harassment policy be reviewed? What are effective ways to raise awareness about harassment? What kind of training programs are useful? Are there warning signs that should alert management to the presence of workplace harassment? If so, what are some typical warning signs?
• Remedies for victimized employees: What remedies will human rights tribunals order to “make whole” employees who have been harassed or subjected to a poisoned work environment? Do these differ from the remedies ordered by arbitrators and courts? If so, how? What is the range of monetary damages typically awarded for an employer’s failure to remedy a poisoned work environment? Does the quantum differ depending on the litigation forum (e.g. do human rights tribunals order compensatory damages at a higher scale than arbitrators)? Does the quantum differ depending on the ground of discrimination (e.g. are damages for sexual harassment typically higher than damages in relation to other prohibited grounds)? Will adjudicators order employers to pay for psychological assistance to help employees cope with harassment they have experienced?
• Systemic/public interest remedies: What type of broader systemic or public interest remedies will adjudicators order to remedy a poisoned work environment? In what circumstances will adjudicators order mandatory human rights training for employees and management? Monitoring by an external organization? A review and revision of workplace human rights policies? In what circumstances will a tribunal or arbitrator retain authority to supervise the implementation of remedies it orders? Can a tribunal or arbitrator add to or amend its original order to address an ongoing problem?