DEFINING HARASSMENT, SEXUAL AND OTHER


There is a commonly held mistaken belief that there is a law against harassing employees.  In fact, there really is no such law.  It is almost astounding how often I hear of situations in which employees are accusing their employer of harassment.  The term harassment is used as if the very utterance of the phrase should make employers quake in their boots.  The phrase is spoken as if harassment is a legal concept recognized by all courts and leading to dire consequences for the perpetrator.  None of this is the case.  The only legal context in which harassment has any meaning is the Ontario Human Rights Code.  It prohibits sexual harassment and harassment generally on the basis of one’s age, colour, creed, etc.  If you are being harassed as a result of one of those factors, there are indeed legal consequences for that behaviour.
 
If, however, you feel you are being picked on because your boss or colleagues just don’t like you, or are mean or unfair, you can call it harassment but that doesn’t really mean anything.  While people in unions sometimes have protection against this kind of harassment, except in the most extreme circumstances there is nothing that non-unionized employees can do about bad treatment which is not motivated by a factor list in the Ontario Human Rights Code.
 
Arguably, if you could prove that your employer had picked on you without justification to such a horrendous degree that nobody should be expected to have to suffer that treatment, you could walk out and sue for wrongful dismissal.  While a wrongful dismissal suit may get you some pay in lieu of reasonable notice, after that pay in lieu of reasonable notice is used up you will need to have a new job to pay the mortgage.  There are very few circumstances which I have seen where the treatment was so bad that an employee actually could convince a judge that they had a right to walk out and treat the situation as a termination.
 
Almost invariably, the offended employee will see their treatment as clearly outrageous and unjustifiable.  Just as often, if you ask the employer what happened you will be told a fairly logical story about how the employee was simply being disciplined or verbally chastised for inappropriate performance.  It all depends on your perspective when it comes to deciding whether a particular event was an appropriate disciplinary response by an employer or unfair treatment.  Even if it was unfair treatment, that treatment would have to be repeated and severe for an employee to be justified in treating their employment as terminated.  Those cases are so rare that I could probably count every one of them that has been decided in Canada on my fingers.  Successful constructive dismissal cases invariably involve a significant change to an employee’s wages, responsibilities or working conditions.  They are almost never based on the employer being mean to them.
 
I receive many inquiries from employees who tell me that they believe that they have good grounds for a law suit for harassment.  As I have tried to explain here, however, there is no such thing as a law suit for harassment.  On American television shows there are law suits for harassment but not here in the real world.  The reason the courts have never ventured into this area is probably because judges simply do not want to be the arbiters of every conflict in every workplace in the country.  If there was such a thing as a law suit for harassment, or put another way, a law suit against mean employers, the courts would be clogged with litigation.
With some exceptions, the courts still assume that adults are adults.  They assume that an adult who is being treated badly in their workplace will polish up their resume and, sooner or later, find new employment.  While that is not always possible, it is the only real option available to employees who believe their employer is a jerk.
 
As published in the Hamilton Spectator, November 4, 2002
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com