Discrimination At Work: What Are Your Options?Jul 22 2019
Everyone deserves to feel safe at work. Unfortunately, this is not always the case.
Employers have a general duty to ensure that the work atmosphere is conducive to the well-being of its employees. That duty also extends beyond how management treats its employees: it also includes how employees treat each other, even other workers or customers who are onsite at a workplace. As part of this general duty, employers are expected to:
- Have a policy statement regarding workplace bullying and harassment;
- Address bullying and harassment by taking steps to prevent it where possible; and
- Have a procedure in place for reporting incidents.
Depending on the severity of the treatment being experienced, there are several options available to employees.
WorkSafeBC defines bullying and harassment as “any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated.” It excludes, however “any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.”
If you feel you have been bullied or harassed at work, you should report it to a supervisor or other designated official. Should this person ignore the issue, you may want to contact an employment lawyer, especially if the bullying is affecting your ability to do your job or if you notice others’ ability to work is affected.
Complaints can be made to WorkSafeBC. The first step, however, is following your workplace procedures for reporting the bad behaviour.
Human Rights Complaint
Section 13 of the Human Rights Code protects employees from negative treatment that relates to a protected personal characteristic including sexual orientation, gender, religion, etc. The treatment does not need to be because of the protected characteristic, it only needs to be a factor in the treatment.
For example, if you have had a manager make derogatory comments about your sexual orientation and you continually apply for promotions and are denied in favour of more junior employees, it is possible your sexual orientation could be a factor in this negative treatment. It may not be the only reason, but so long as it is a factor in the adverse treatment it would be considered discriminatory.
A human rights complaint may be filed while you are still an employee. It generally needs to be filed within 12 months of the conduct in question, or at least some of the conduct must have happened in the one year before the complaint if it is conduct that has been ongoing.
Constructive Dismissal occurs where, through the actions (or inaction) of the employer, the employment contract (whether written or unwritten) has been fundamentally impacted. While normally this relates to a demotion, it can also apply to an implicit term in every employment relationship that the employer will provide a safe workplace. Where an employee has been constructively dismissed, he or she may resign and seek damages.
Abusive treatment must be considered so outrageous as to amount to a repudiation of the employment contract. The test to be applied by the court is whether a “reasonable person” in the circumstances would not be expected to persevere in the employment. This is a high standard that the court applies and there can be significant risk associated with resigning. Before taking this step, it is recommended that you seek legal advice.
Constructive Dismissal claims are generally advanced in the Supreme Court of British Columbia and are subject to a general limitation period of being filed within two years of the resignation or of the claim arising.
Contact RDM Lawyers
Every worker in BC is entitled to feel safe in the workplace. If you are the subject of bullying and harassment, and your employer does is not taking corrective action or your employer is treating you differently because you complained, you should contact RDM Lawyers to set up a consultation.