Ed Canning - Ontario Human Rights Code
The Ontario Human Rights Code addresses many of the injustices that happen in the workplace but not all of them. The Code prohibits discrimination in the workplace on a variety of grounds including age, sex and creed.
Being abused verbally in the workplace may be a bullying and harassment complaint under the Occupational Health and Safety Act, but unless that treatment relates to one of the grounds listed in the Code, it is not a human rights complaint.
Not getting a raise for three years in a row would likely feel very unfair, but again, what matters to a Human Rights adjudicator is whether or not the denial of the raise was based on a prohibited ground of discrimination. The boss just not liking you does not cut it. Cathy’s case illustrates the point. She was a young nurse in a hospital who believed she was forced out of the workplace because of her age, sex and creed.
One day a coworker asked her if she had sex with her boyfriend, when Cathy did not respond, she asked again. Cathy explained that they were waiting until marriage. The colleague already knew that Cathy identified as a Christian. Cathy thought this question was discrimination on the basis of her sex and creed. When she complained to her boss, she told Cathy she was not her mother and asked her what she wanted her to do about it. Cathy asked her what an appropriate response would be to a question like that and the manager said she would tell the person that it was none of their business. Sound advice.
This colleague kept persistently asking Cathy personal questions about her living arrangements, how long it took her to get ready for work in the morning, her personal care, whether she lived with her parents and why she always wore makeup to work.
Cathy believed that her curious colleague did not like her because of her creed and her conservative religious beliefs and that the colleague had exerted influence over a number of other staff members to raise unwarranted performance issues about Cathy in an attempt to drive her out of the workplace. One day a patient threw a bedpan at her (the decision does not tell us whether it was empty or not) and a colleague suggested that Cathy must have done something to upset the patient. She was accused of yelling at a patient and an anonymous complaint was filed relating to a medication administration record. She received a warning letter with respect to performance issues. One day a male co-worker asked her 4 times in one shift whether there was anything new in her life!
Cathy succeeded in getting a transfer to the emergency department and when she saw a speculum, she asked what it was. Her surprised colleague asked her how old she was (23) and whether she’d ever had a gynecology appointment. That was the alleged age discrimination.
When some street drugs were found in a bathroom and Cathy could not identify them from their smell, a colleague said she was “sheltered”. Cathy thought that was because of her age and not her life experience.
Cathy failed to succeed in the emergency department and was transferred back to her old unit where she was told that she would have to work with an educational lead to address performance issues. She refused to go back to work and filed her human rights complaint.
No surprise, she lost.
Cathy thought she was a good nurse who had been treated unfairly because of her sex, creed and age. The adjudicator did not agree. There simply was no persuasive linkage between the conversations Cathy talked about and the employer’s attempt to manage her performance.
People spend at huge part of their waking hours at work. They talk. To pass the time, they talk about many things. Some people have boundary issues and ask inappropriate questions. That is life. It is not, however, necessarily a human rights complaint.