Introduction
Under the Ontario Occupational Health and Safety Act and the Ontario Human Rights Code, harassment is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
There are two components to this definition: behaviour that the subject of the conduct finds to be offensive, annoying, or provoking, which is subjective; and that the person committing the conduct knows or ought reasonably to know would be unwelcome, which is objective. For the purposes of this blog post, I will refer to this objective component as the "reasonable person standard." I will also refer to individuals who are the subject of conduct that they find to be offensive as "complainants," and the persons committing that conduct as "respondents."
But what if a respondent, because of a cognitive, intellectual, or psychological disability, does not know that their behaviour would be unwelcome? How could a workplace investigator or organization approach such a situation?
As I will discuss in this blog post, I encountered this very issue in a few of my investigations. As our organizations (including workplaces and educational institutions) become more inclusive of people with cognitive, intellectual, and psychological disabilities, and as there is increasing awareness of how such disabilities affect how individuals behave and interact with others, I believe that this issue will become more common. In this blog post, I will share how I approached this issue with the goal of providing workplace investigators and organizations with some suggestions on how they may wish to consider this issue.
How could a disability affect a person's ability to reasonably know that their behaviour would be unwelcome?
In some instances, a person's ability to understand the impact of their behaviour on others is reduced or restricted by their disability. For example:
- A person experiencing psychosis screams at their co-workers because they believe that they are trying to hurt them.
- A person with an intellectual disability does not understand how their repeated emails are interpreted by their colleagues as aggressive and distressing.
In some instances, a person's behaviour may be a symptom or characteristic of their disability. For example:
- A person on the autism spectrum may struggle to understand social cues and does not understand that their bluntness is being interpreted as rudeness.
- A person with fetal alcohol spectrum disorder may have difficulty self-regulating and becomes very angry with others when they feel frustrated.
What is reasonable, anyway?
The concept of the "reasonable person" is a key idea in Canadian law.
The Human Rights Tribunal of Ontario noted that when considering whether a person ought reasonably to have known that their behaviour would be unwelcome, the standard is what the perception of what a reasonable person would be, considering the perspective of both a reasonable person in the complainant's position and a reasonable person in the respondent's position.1
Because the reasonable person standard is an objective assessment, it does not consider a respondent's individual characteristics, including disabilities, even where those characteristics affect their capacity to know that their behaviour would be unwelcome.2
So why does it matter if a person can't reasonably know their behaviour would be unwelcome?
If a respondent raises the possibility that, due to their disabilities, their ability to know that their behaviour would be unwelcome was diminished or impaired, an organization should consider how this may engage their legal obligation not to discriminate on the basis of disability and their duty to accommodate (for example, in employment or in education).
For example:
- An organization may wish to consider this information when deciding what actions, if any, to take following the investigation. In such an instance, the organization may want to ask the respondent to provide evidence from their medical practitioners of how their disabilities impact their ability to know that their behaviour would be unwelcome. I note that organizations may wish to seek guidance on what information they can request to ensure that they are respecting the respondent's right to privacy.
- If the respondent is found to have harassed the complainant, this may be a mitigating factor when determining what remedial action an organization should take with respect to the respondent.
- If the respondent is not found to have harassed the complainant, the organization may want to assess how it can better support people with similar restrictions and limitations and which organizational changes are needed to make their organization more inclusive.
An organization could also utilize this information to assess its accommodation procedures to determine if any changes need to be implemented to reduce the likelihood of a similar situation occurring again.
How I approached this issue
In a harassment investigation at a post-secondary institution, the respondent was a person with complex and intersecting mental health and cognitive disabilities. They had identified some of their diagnoses to the post-secondary institution when they provided their medical evidence of their restrictions and limitations for the accommodation process. They had also personally disclosed some of their diagnoses to their professors and other students. However, the respondent disclosed additional diagnoses to me.
Throughout the investigation, the respondent indicated to me that some of the allegations concerned behaviours that were characteristic of one or more of their conditions. They also indicated to me that, due to their disabilities, they struggled to understand the impact of their behaviour and why they were being accused of harassing others.
I subsequently took the following approach to this information:
When conducting my policy analysis (i.e., determining whether the respondent harassed the complainants), I did not consider whether their disabilities impacted their ability to know that their behaviour would be unwelcome. Instead, I applied the reasonable person test objectively.
I added a section to my report which laid out the evidence which the respondent shared with me regarding how their disabilities impacted their ability to know their behaviour would be unwelcome. To respect the respondent's privacy, I did not share any details of the diagnoses which they had only disclosed to me; rather, I noted that the respondent told me that they had shared additional information with me about how their ability to understand the impact of their behaviour was impaired.
I clarified to the post-secondary institution that I did not make a determination on this issue because doing so would require evidence from the respondent's medical practitioners, which was outside of my mandate.
I suggested to the post-secondary institution that when determining whether to take any corrective measures or responses, they may wish to consider further evidence from the respondent's medical practitioners regarding how their conditions affected their ability to understand the impact of their behaviour.
As I noted earlier, as organizations become more diverse and as understanding of cognitive, intellectual, and psychological disabilities increase, it will be increasingly important to consider what impact, if any, a respondent's disabilities had upon their ability to understand the impact of their behaviour. However, workplace investigators can help organizations navigate this issue by sharing relevant information and providing insights for possible next steps.
1 Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695 (CanLII), < https://canlii.ca/t/fx6tm >, retrieved on 2025-01-29
2 Note, however, that in human rights law, the individual characteristics of a complainant may be relevant in the context of the "reasonable victim" standard. For further discussion, see Dhanjal v. Air Canada; 1996 CanLII 2385 (CHRT), at paras 216-218.
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.
