A recent case at the Ontario Grievance Settlement Board, O.P.S.E.U. v. Ontario Ministry of Community Safety and Correctional Services dealt with the complaints of Robert Ranger, a gay correctional officer who worked for Ontario's Ministry of Community Safety and Correctional Services. Mr. Ranger alleged that the employer condoned discrimination by fellow employees and managers, which created a poisoned work environment.
The Board heard evidence that during Mr. Ranger's four years of service from 1998- 2002, Mr. Ranger was a victim of discrimination and harassment. He was subjected to:
- Simulated sex acts, intentionally made in front of Mr. Ranger to taunt him;
- Frequent derogatory references about homosexuals including, "cocksucker", "faggot", "fucking flamer", "queer" , "flaming faggot" and "fudge packer", often directly targeted at Mr. Ranger;
- Sexual joking at the expense of Mr. Ranger;
- Comments that there was no place for a homosexual in the workplace;
- Anonymous homophobic e-mails, intended to harass and discriminate against Mr. Ranger for his sexual orientation; and
- Differential treatment by management on the basis of sexuality.
The Board also heard evidence that at least three managers were aware of, or at the very least, suspected that Mr. Ranger was the victim of discrimination and harassment in the form of homophobic behavior.
After being a victim of a series of discriminatory and harassing remarks during a training session, Mr. Ranger went off on sick leave in February 2002 and subsequently filed a complaint under the employer's Workplace Discrimination and Harassment Prevention Policy in May 2002. After no action was taken, Mr. Ranger filed a grievance in December 2002. An investigation into the matter did not begin until August 2003, 18 months after Mr. Ranger went off on sick leave. The investigation report, dated December 12, 2003 supported the allegations made by Mr. Ranger. The Investigator found that Mr. Ranger was the victim of various forms of discrimination and harassment, creating a poisoned work environment. As a result, on April 1, 2004, almost 5 months after the investigation report was available, the Deputy Minister sent a letter to Mr. Ranger saying he agreed with the conclusions of the investigation report and stated, "I regret that you had to experience this unfortunate behavior." However, despite this acknowledgement, no evidence was presented to indicate that any steps were taken to address the homophobic workplace.
The Vice Chair found that:
- Mr. Ranger was harassed, suffered discrimination and a poisoned workplace on the basis of his sexual orientation;
- The employer did not properly investigate Mr. Ranger's Workplace Discrimination and Harassment Prevention Policy complaint; and
- The employer violated section 5 of the Human Rights Code by failing to provide for equal treatment of Mr. Ranger.
In the decision, the Vice Chair indicated that there was an inexcusable delay in the employer's investigation of the discrimination and harassment experienced by Mr. Ranger. Even though management was aware of the reasons why Mr. Ranger went on sick leave, they did not investigate the issues until long after Mr. Ranger lodged a complaint. Mr. Ranger should not have had to file a formal complaint to get protection. Management's knowledge of the behaviour should have been enough to trigger action. However, even when Mr. Ranger did file a formal complaint, there was a significant amount of inexcusable delay. Moreover, when the investigation was complete and a finding of discrimination and harassment was made and accepted, no steps were taken to address the problematic culture of the workplace.
The Vice Chair also noted that it was not enough to have a policy against harassment and discrimination. The policy also must be enforced.
WHAT DOES THIS MEAN FOR EMPLOYERS?
As an extreme example of what not to do, this case helps guide employers on how to deal with situations of discrimination and harassment in the workplace.
1. If you are aware of situations of discrimination and/or harassment in the workplace, you should investigate immediately (especially given the new requirements in the upcoming amendments to the Occupational Health and Safety Act in respect of workplace violence and harassment). Taking positive steps to investigate and address issues of harassment and/or discrimination as soon as they become known to the employer can be used as evidence to counter an argument that the employer was also responsible for the behaviour.
2. Do not stall the investigation process. Treat it as an organizational priority. Any inexcusable delays can work against an employer who may later wish to assert a due diligence defence.
3. If you receive an investigation report which indicates that discrimination and/or harassment exists in the workplace, do not ignore the problem. Be proactive in the solution. Decision makers look positively upon employers who ensure that inappropriate behaviour is dealt with expeditiously and appropriately.
4. You should have a policy against harassment and discrimination in the workplace and you should enforce it consistently. Having a policy that isn't enforced or is enforced inconsistently does not protect employees from harassment or the employer from liability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.