Can repeated subtle acts of harassment over time still be considered workplace harassment?

Yes. In fact, in our experience as employment lawyers, a pattern of this type of harassment that occur over time against an employee is more common than one larger act of workplace harassment. In both cases, the result is a toxic work environment which constitutes harassment.

Some common examples of these types of behaviours include:

• purposely ignoring the employee by not answering emails or refusing to include the employee in meetings or work-related discussions;
• intentionally “ganging up” against the employee where multiple other employees target the employee through coordinated effort to exclude them or belittle them in the workplace;
• micro-managing the employee where the employee’s manager demands to be included in all the employee’s correspondence and meetings, ensuring that the employee asks for permission before engaging in basic work-related tasks or scheduling, etc.;
• setting unrealistic deadlines for the employee to meet;
• refusing to provide the employee with certain information or details that are needed to perform work-related tasks or responsibilities;
• refusing to provide the employee with training necessary to perform work-related tasks or responsibilities;
• making snide or sarcastic comments;
• making little “jokes” or rude statements;
• exaggerating any mistakes made by the employee especially mistakes that are common and easily rectifiable; or,
• refusing to acknowledge when the employee has done a good job or performed well with respect to work-related tasks while praising others.

This blog will examine what is workplace harassment, what are the legal implications of workplace harassment and what are some steps that an employee should take if they feel that they are being harassed at work.

What is workplace harassment

According to the Occupational Health and Safety Act, 1990 (“OHSA”), workplace harassment is defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”

However, generally speaking, workplace harassment occurs when an employee is a target of ongoing offensive conduct by one or more other people in the workplace such as the employee’s colleague or manager. This type of harassment can be called “bullying” or a “toxic work environment” or potentially even “discrimination” if relates to a protected ground under the Ontario Human Rights Code, 1990 (“Code”). As set out above, workplace harassment does not need to be drastic or shocking for the conduct to be considered workplace harassment. In fact, it is much more common to see ongoing behaviours that may be subtle, but the cumulative effect of those ongoing behaviours can be quite devastating to the employee who is experiencing it.

We have had many clients over the years who have experienced workplace harassment. These employees are often quite distressed as it can be very difficult emotionally to deal with harassment at work. These employees may start experiencing mental health conditions such as anxiety and depression and will also frequently need to go on stress leave because their mental health was so negatively affected by the workplace harassment they were subjected to.

What are the legal implications of workplace harassment?

In Ontario there are two main pieces of legislation which seeks to protect employees from workplace harassment. If an employer fails to comply with these statutes, that breach would be unlawful. The two pieces of legislation are:

1. Ontario’s OHSA as defined above, is used to protect workers’ health and safety. It defines a toxic workplace as “workplace harassment” and sets out that all provincial Ontario employers are subject to Ontario’s OHSA and must a) prepare policies with respect to workplace harassment and b) have in place a workplace harassment program. Generally, under the OHSA an employee should know how to make a complaint about workplace harassment, the employer should investigate appropriate complaints of workplace harassment and inform the employee of the results of that investigation in writing.

2. The Code, as defined above, prohibits individuals from being discriminated against based on certain prohibited grounds (age, race, disability, sexual orientation, gender and others). The Code applies to many areas of employment including hiring, training and dismissals. Further, if workplace harassment includes discrimination based on a prohibited ground under the Code, the employee may make an application to the Human Rights Tribunal of Ontario (“HRTO”). The HRTO has a hearing and application process that can resolve claims of workplace harassment under the Code. The OHSA also contains references to workplace sexual harassment.

Workplace harassment also may result in constructive dismissal. Constructive dismissal happens when the employee’s fundamental terms of employment are changed unilaterally by the employer. If constructive dismissal is established, the employee may claim termination pay and severance pay in addition to other possible damages stemming from workplace harassment regardless of if the employee quit or resigned. The law in Ontario is that in cases of workplace harassment, the employee could have been forced to quit as it may be unreasonable for them to continue to work under those toxic conditions.

What are some steps an employee should take if they feel they are being harassed at work?

There are several steps that an employee can take if they feel that they are experiencing a toxic work environment.

1. Identify the problem, seek support and request that the ongoing workplace harassment cease. For example, the employee may be able to ask their direct supervisor or manager for assistance by having that supervisor or manager request the offending coworker or colleague stop certain behaviours that may constitute workplace harassment.
2. Write down when these incidents happened and what occurred during these incidents of workplace harassment.
3. Review the employer’s workplace policies relating to workplace bullying, harassment and discrimination and identify how to make a formal complaint.
4. Make a formal complaint in writing.
5. Cooperate with the investigation into the complaint.
6. Speak to an employment lawyer.

What are some steps an employer should take when facing workplace harassment issues in the workplace?

Here are several steps that an employer can take to reduce their risk of litigation from workplace harassment.

1. Ensure that the company or business has updated workplace policies related to workplace harassment and discrimination.
2. When a complaint is made related to workplace harassment make sure that the company is responsive and follow the procedures set out in the policies if the policies are properly drafted.
3. Make sure that the company or business quickly investigates any complaints related to workplace harassment in a reasonable manner through an impartial investigator, interview witnesses, etc., and cooperate with the employee who made the complaint.
4. Ensure that the company or business gathers evidence, documents the findings of the investigation and communicates those results to the employee who made the complaint.
5. Speak to an employment lawyer if they have any questions or concerns.

How Zeilikman Law Can Help

Approaching an employment lawyer can be very helpful to an employee who is experiencing workplace harassment or an employer facing a complaint related to workplace harassment. Employment lawyers like the ones at Zeilikman Law can assist an employee or employer by reviewing the facts of their case and helping them determine what the next best steps are to take to ensure that their employment rights are protected or reduce the risk of litigation.

To read more about employment law and workplace harassment, bullying or discrimination, please review our blogs:

• Harassment and Bullying in the Workplace?
• Employment Harassment
• I Am Experiencing a Toxic Work Environment. What Should I Do?

You can contact our office at (905) 417-2227 or here to schedule your own confidential consultation with Zeilikman Law.