January 27, 2022 by Samrah Mian, CLAS Articling Student
Bullying and harassment at work hurts. People who face workplace bullying or harassment may feel humiliated, angry, and even traumatized by the experience. They’re more likely to be dissatisfied with their job, suffer from low motivation, feel less sense of belonging in their workplace, and experience decreased feelings of personal well-being.[1]
Over the last few decades, outward displays of demeaning and offensive conduct have become less acceptable in professional environments. But despite these social changes, bullying in the workplace is still unfortunately common. In fact, over 60% of Canadian survey respondents reported that they had been a target of harassment at work.[2]
Any type of workplace harassment can cause significant distress and harm. However, it’s important to know that not all workplace harassment is contrary to the Human Rights Code (the “Code”). As clarified by BC’s Human Rights Tribunal, the Code protects people from discrimination, but it “does not protect people from general bullying and harassment.”[3]
So how can you tell the difference between harassment that is and is not discrimination and a violation of the Code?
When is workplace bullying a human rights violation?
Bullying and harassment don’t always give rise to a human rights complaint. That’s because the Code doesn’t apply to every incident of rude, harassing, or unfair treatment. Rather, the Code protects people from discrimination. To be discrimination, the unfair treatment must target or impact someone based on a protected characteristic, such as their race, disability, sexual orientation, or place of origin.[4]
For instance, in a 2012 case the complainant alleged she was discriminated against at work due to her sex.[5] She said the respondent fostered a toxic working environment, she experienced verbally and physically abusive conduct and was not paid for overtime. She took a sick leave due to the situation. However, despite these negative impacts, her human rights claim was denied.
The Tribunal said that although her claims might reveal “demeaning, inappropriate, bullying or abusive conduct,” they didn’t demonstrate any violations of the Code based on her sex.[6] She could not establish that she was a target of the treatment because she was a woman. The Tribunal explained that the “Code does not regulate all workplace conduct. It only regulates discriminatory conduct.” Since she could not link the negative treatment to her sex, the treatment was not discriminatory, and her human rights claim was dismissed.
No matter how severe, workplace bullying will only give rise to a human rights complaint if it’s connected to a protected characteristic. For instance, if Ali is Muslim and is being bullied by his boss, the bullying is only a human rights violation if Ali’s religion is at least one of the reasons why his boss is bullying him. It’s not enough that Ali be a Muslim person and experience bullying; to succeed in a human rights complaint, he must prove that his religion is at least a factor in the negative treatment he’s experiencing. If instead Ali is being bullied because he supports a sports team that his boss dislikes, then the bullying isn’t discrimination, because choice of sports team is not a characteristic that’s protected from discrimination by the Code.
Ali doesn’t need to show that his religion is the only factor behind the negative treatment. But it does need to be at least a factor. Even if his boss mostly bullies him due to his preference in sports teams, if Ali’s religion factors into the treatment at all, then it may still be discrimination under the Code.
What about sexual harassment?
Sexual harassment is considered discrimination based on the protected characteristic of sex. Sexual harassment is “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment”.[7] The harassment has an obvious link with the target’s gender. For this reason, protection from sexual harassment is covered under the Code.
Examples of discriminatory actions include:
- Calling someone sex-specific insults or names
- Telling sexual or sex-specific jokes
- Bragging about sexual encounters
- Making repeated advances to someone
- Staring at someone’s body or making inappropriate comments about it
- Sharing pornography or lewd “jokes”
If a person experiences sexual harassment at work, they may make a human rights complaint.
What can I do if the bullying or harassment isn’t covered by the Code?
The Code isn’t the only avenue for people who are being bullied or harassed at work. Depending on the situation and the workplace, people may also pursue the following alternatives:
- Making an internal complaint to their supervisor or human resources personnel;
- Beginning a grievance if they are a member of a union;
- Contacting WorkSafe BC and filing a claim for workers’ compensation;
- Filing a civil action for constructive dismissal.
Just because some forms of harassment and bullying aren’t covered by the Code doesn’t mean they aren’t serious or harmful to the victim. Workers are entitled to a workplace free of these sorts of behaviours. If someone is unsure about what to do about their situation, they can speak to a lawyer or advocate by making an appointment with the Human Rights Clinic’s Short Service Clinic or, for sexual harassment situations, CLAS’s SHARP Workplaces program. Volunteer lawyers with Access Pro Bono can also advise people on their legal options.
[1] Statistics Canada, Harassment in Canadian Workplaces.
[2] Employment and Social Development Canada, Harassment and Sexual Violence in the Workplace.
[3] Loiselle v. Windward Software Inc. (No. 2), 2021 BCHRT 7 at para 28.
[4] See section 13 of the Human Rights Code for the full list of protected characteristics.
[5] Curtis v. Fraternal Order of Eagles and others, 2012 BCHRT 45.
[7] Janzen v Platy Enterprises Ltd., 1989 CanLII 97 (SCC).