Employers: Sticks and Stones May Break Bones, but (Allowing) Name Calling Can Get You Sued

It goes without saying — but is worth repeating — that employers are legally obligated to ensure that the workplace is free of harassment and abuse. Yet, some employers mistakenly believe that inappropriate rhetoric that stops short of threats, racism or sexism is, while not endorsed or encouraged by management, is nevertheless tolerable; if for no other reason than governing such behaviour across a large workforce is administratively difficult. 

Basically, they see it as analogous to drivers exceeding the speed limit on the highway. Going by the letter of the law, the majority of drivers deserve of a ticket and maybe a few demerit points, too. But to balance public safety with pragmatic reality, the police typically set their sights on the most egregious speed demons who go pedal to the metal vs. folks whose foot is slightly heavier than it ought to be.  

However, employers are warned not to take their lead from what happens on the highway, because harmful rhetoric is categorically not allowed in the workplace — and employers that shirk this legal obligation are on an express toll route to a lawsuit and lasting reputation damage. 

The key thing for employers to understand and accept, is that even if a vexatious comment does not necessarily constitute a threat, attack, or fall under the classic definition of hate speech, it still likely represents a breach of the Human Rights Code if it contributes to an unhealthy and toxic work environment, and if the individual or group communicating the comment knows — or reasonably ought to have known — that it was unwelcome. 

It is also essential to bear in mind that the offensive rhetoric does not need to be part of a pattern. A single remark, a so-called “joke,” forwarding an email — or any other one-time behaviour — that is deemed to be offensive may meet the threshold of a Human Rights Code breach. 

Ultimately, employers that learn inappropriate rhetoric is taking place and ignore it as “an unfortunate but unavoidable part of life on the work landscape,” or who do not have suitable processes and policies in place governing how incidents are reported, how incidents are investigated (which may include alternative dispute measures if all parties agree to participate), and how transgressors are disciplined accordingly (up to and including termination), can be held vicariously liable. Indeed, just as anyone who has been pulled over by a stern traffic cop knows, ignorance of the law is not a defense. On the contrary, it’s damning.

In addition, all employers —those that are confident about the suitability of rhetoric in their workplace, and those that are concerned — are strongly encouraged to provide meaningful training in cultural awareness, diversity, and human rights. While this won’t completely eliminate the possibility of an individual or group crossing the line and triggering a breach, it can significantly lower the chances. 

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At PIVOTAL, our highly experienced HR specialists can work with your executive, management and supervisory teams, and equip them with the knowledge and tools they need to foster a workplace that is free of harmful rhetoric — now and into the future. We can help your organization strengthen and improve policies and processes related to reporting, investigating, and acting upon alleged and established human rights breaches, as well as provide your workforce with diversity and cultural awareness training.