Certain industries such as trucking or the oil fields have had a history of a male-dominated work force where the workplace culture may indeed have been a little rough.
Two recent decisions highlight the requirement that all industries, regardless of a historical “culture”, must adhere to employment and human rights law.
On February 5, 2010, the Ontario Human Rights Tribunal released the decision of Khan v Lynx Trucking , awarding a former employee $25,000 plus lost wages for the racist comments she was forced to endure by the owner of the trucking company. At least one of the employer’s witnesses referred to the ‘rough and tumble world of trucking’, and most of the employer’s own witnesses noted that the owner would often swear and raise his voice.
After months of dealing with racist comments and jokes, when the employee approached the employer to not speak to her in that manner, he responded that it was his “f***ing company”. That may be true, but owners must still comply with Ontario employment and human rights laws, which include refraining from discriminatory comments and conduct.
In addition to the large damage award, the Tribunal ordered the company to retain an expert in human rights to assist in the development and implementation of a human rights and anti-harassment policy for the organization, and to implement human rights and anti-harassment training in the workplace. In other words, being the owner of the company did not exempt the respondent from the jurisdiction of the Tribunal.
Last August, the Alberta Court of Appeal faced a similar defence in the wrongful dismissal case of Poliquin v Devon Canada Corporation .
In that case, the oil fields company fired a manager in part for accessing internet pornographic and racist material and emails on the company computer, despite warnings not to do so.
The court rejected the manager’s argument that because the company is in small-town northern Alberta in the heart of the oil patch, the industry atmosphere and culture was relaxed with respect to emails of “questionable content”. The court held that the employee’s conduct was not to be measured against the lowest common standards in an industry, but rather, to the reasonable standards to which the company requires compliance.
In that case, the company’s anti-discrimination policy addressed the problematic behaviour, and the company was able to point to it as a defence. The court upheld the company’s decision to dismiss the employee.
While all workplaces certainly have their own culture and history, that culture must evolve with Canadian law.
Both of these cases highlight the fact that workplace “culture” can no longer be an excuse for behaviour prohibited under the applicable human rights code. Up to date workplace policies remain an effective tool for companies to both deal with problematic behaviour and to defend themselves when facing discrimination complaints and law suits.
(*This piece was written for the Financial Post HRPA website.)