You Can’t Say That at Work! Charting a course through harassment, insubordination, defamation and free speech

In the wake of numerous allegations of sexual harassment made against high-profile men, workplace behaviour, including speech, has become the subject of intense scrutiny. While certain types of comments or language might be clearly unacceptable in the workplace, there are many instances in which it may be difficult to draw the line between acceptable and unacceptable speech. For example, it is often difficult to draw the line between acceptable and unacceptable workplace jokes – what seems funny to one worker may be hurtful to another. In this session, experienced employer and union counsel focus on types of workplace communication that can be problematic, focusing on the “grey areas” and providing guidance on determining what can and cannot be said in the workplace. Specific questions to be addressed include:

Sexual harassment:

• What is the line between complimenting a co-worker or subordinate and sexual harassment? Is there any room in the workplace for comments on personal appearance or clothing?
• When will friendliness or flirtation be considered sexual harassment? Can sexual harassment still be established if an employee welcomed or did not voice objection to past flirtation or comments?
• In an effort to prevent employees from receiving potentially unwanted attention at work, are employers legally permitted to institute workplace rules/policies that prohibit romantic relationships between co-workers? Is this an effective strategy for reducing sexual harassment?

Other harassment:

• When do comments cross the line from good-humoured ribbing to harassment? Can an objective standard for workplace joking be set, or is it a subjective “judgment call” whether a joke crosses the line? What role, if any, should the culture of the workplace play in determining what is acceptable and what is not?
• When does gossiping constitute harassment? What, if anything, can be done about rumours without a known source?
• When does “management” become bullying? How can you distinguish between bullying and an aggressive management style, a difficult personality or simple insensitivity on the other?

Free speech, defamation and insubordination:

• Do employees have any freedom to express criticism of their employers? Can employees be disciplined for criticism of the employer voiced to co-workers? How far do the constitutional principles of freedom of expression and freedom of association extend in protecting online communications by union members?
• When can an employee be disciplined or dismissed for expressing an unpopular political or religious opinion publicly while off-duty? What freedom, if any, do employees have to discuss religious or political views in the workplace?
• What potential liability does an employer face as a result of providing a reference that an employee claims is defamatory? What measures can an employer take to minimize this potential liability? Besides references, what other employer comments regarding an employee might be considered defamatory?