A hostile work environment is created when either management or a fellow employee behaves in such a way that you, as the employee, find it very difficult to work. This hostility can be created by harassment, discrimination, violence, and/or threats of violence.
A hostile work environment can be a violation of the Ontario Human Rights Code and/or the Occupational Health and Safety Act. An employee who believes they are working in a hostile work environment should contact our firm immediately to discuss their options.
Do I Work in a Hostile Work Environment?
What Constitutes a Hostile Workplace?
Ask yourself these questions:
- Have you been insulted or degraded based on a discriminatory ground (e.g. race, religion, sex, or disability) in the Ontario Human Rights Code?
- Have you heard unwelcome sexual remarks (including sexual jokes and banter) that have made you feel uncomfortable?
- Have you been sexually or racially harassed (i.e., have you been subjected to comments or conduct of a sexual or racial nature?
- Have you been sent a sexual picture or discriminatory email?
- Do you feel as if you have been bullied (e.g., humiliated or named called)?
- Have you been given unjustified criticism, impossible deadlines, or are you a victim of work sabotage?
- Has someone threatened to hurt or intimidate you?
- Has someone used physical force on you (e.g. pushes you in the hallway as you walk)?
If you have answered “Yes” to any of the following questions, you may be the victim of a hostile work environment and should seek professional advice from one of our lawyers immediately. The above questions are not an exhaustive list of scenarios and if you feel you are a victim of a hostile work environment in some other manner, give us a call so we can hear your story. You may be entitled to damages.
I am a Victim of Workplace Harassment, What Now?
Employers and employees are prohibited from harassing workers. Harassment of a sexual or racial nature, for example, can justify the summary dismissal of that harassing employee. A summary dismissal is a termination with cause, meaning no entitlement to a severance package. Even if there is more minor harassment, this should not be ignored as a cumulative number of minor incidents could also justify the culprit being summarily dismissed. It could also result in a severance package for you, depending on the circumstances. Therefore, it is critical you report such harassment to your supervisor, human resource department, and call us.
How to File a Hostile Work Environment Claim
There are a number of legal avenues available to you if you are working in a hostile work environment. Each legal avenue will depend on the specific case at hand, for example, who created the hostile work environment (employer, another employee, or both), what act was done, and what was said. Therefore, it is best to contact our firm to determine which legal avenue is appropriate for your case, and to obtain a possible award of damage or settlement.
How to start a claim can be discussed directly with one of our lawyers.
Here are a few of the possible avenues:
Constructive dismissal is a type of wrongful dismissal where the employer has not directly terminated the employee, but instead, the employer has failed to comply with the employment contract in a major respect. This could mean changing a fundamental term without employee acceptance, therefore, pushing the employee to quit. This could also be the result of a hostile work environment situation in which the employer has failed to provide a safe working environment, free from harassment or bullying (which is an implied term of an employment contract), and thus, has affected the employment contract in a fundamental way.
It is an implied term in every employment contract that an employer will provide a safe working environment for its employees, and if the employer fails to do so, the employer will be liable for wrongful dismissal damages and severance pay in an action for constructive dismissal.
Ontario Human Rights Claim
If the hostile work environment has been caused by harassment or harmful acts based on a prohibited ground under the Ontario Human Rights Code, an employee may have a claim for discrimination. Prohibited grounds include:
- Sex (including pregnancy)
- Ethnic Origin
- Religion or Creed
- Marital or Family Status
- Sexual Orientation/Gender Identity and Gender Expression
The employer could be faced with a human right complaint if they have allowed the discrimination to occur or failed to stop or sanction it. Additionally, an employer can be vicariously liable for an employee’s actions. Vicarious liability means when an employer is liable for harm, for example harassment or discrimination, by one or more of its employees.
Occupational Health and Safety Claim
Under the Occupational Health and Safety Act (OHS), employers with five or more employees are required to have a workplace policy in place that deals with workplace violence and harassment. Employers should have a written policy that is accessible to the employees, as well as training to discuss implementation of the policy. The policy should include ways to report workplace harassment, as well as how complaints will be dealt with.
The OHS defines workplace harassment to include all types of harassment under the Ontario Human Rights Code, as well as “psychological harassment” or “personal harassment”.
Hostile Work Environment under Labour Laws
If you are a unionized employee, you will be governed by your specific collective agreement. If you believe you are a victim of a hostile work environment, you should contact your union representative. If the hostile work environment has been caused by your union, please contact our firm immediately.
Under the Labour Relations Act, 1995, a union has a duty of fair representation to the employees it represents. This duty requires that the union must not act in a manner that is arbitrary, discriminatory or in bad faith in representing any of its employees.