The Law of Poisoned Workplaces
October 5, 2017
The majority of us spend many hours a day at work, effectively making the workplace a home away from home. Often, this home away from home can become unpleasant, with co-workers subjecting one another to distasteful comments, bullying, and harassment, among other disagreeable things.
If you work in an unfriendly environment you may wonder what you can do to fix the situation. Certainly, in some circumstances, there are legal options available that can assist you, and may help you obtain a financial or other remedy as a result of the harm you have suffered. This week, we explore the legal concept of a “poisoned work environment”, what steps can be taken if you believe you work in such an environment, as well as common situations in which such an environment has been found to exist.
What is a Poisoned Work Environment?
A poisoned work environment is one which is hostile or unwelcoming due to offensive actions, insults, degrading comments or jokes, and bullying of employees. These actions and comments can be made by colleagues, managers, or anyone else you come into regular contact with in the workplace. Often these actions are persistent and directed towards a particular employee making the targeted individual feel uncomfortable, threatened, or unwelcome.
When Does a Poisoned Work Environment Become a Human Rights Issue?
Where unpleasant comments or behavior are based on a protected ground under the Alberta Human Rights Act, the person who is subject to such hostility can file a complaint with the Alberta Human Rights Commission.
The Alberta Human Rights Act creates basis rights for employees, including prohibiting workplace discrimination on the basis of:
- Place of origin,
- Religious beliefs,
- Physical Disability,
- Mental Disability,
- Marital Status,
- Family Status,
- Source of income, and
- Sexual Orientation.
If an employee is being targeted as a result of one of the above, that employee may have grounds to file a complaint.
Examples of Situations That May Give Rise to a Human Rights Complaint
- An employee being regularly subject to racial epithets or slurs in the workplace;
- An employee being referred to as an “old fart” and/or being teased by colleagues about their age or about perceived health problems related to aging;
- Pornographic or otherwise explicit emails being sent to an employee by other employees;
- Inappropriate touching and lewd comments directed towards an employee;
- Unwanted flirting; or
- Homophobic slurs.
Although some behavior is rude or offensive, and can cause someone to feel uncomfortable or unwelcome, not all actions rise to a human rights complaint. An example of a situation that may not legally sufficient to establish a poisoned work environment could be where an employee who is continually called stupid, useless, or ignorant (unless the insults were based on a protected ground, such as a mental or physical disability). Such a situation, could, however, lead to a possible constructive dismissal claim in court.
Can I Sue My Employer?
In some situations, you may be able to sue your employer in court, in lieu of filing a human rights complaint.
Alberta employment law recognizes the concept of “constructive dismissal”. A constructive dismissal is essentially a fundamental change in work the terms of your employment without your consent, which may void the employment contract between the parties. The courts have deemed it to be a defined term of every employment contract that an employee will be treated with dignity and respect. Where an employer is made aware of a poisoned work environment and fails to protect its employees from bullying, discrimination, or harassment, that employer may be deemed to have fundamentally changed the terms of employment by not ensuring that employee is treated with dignity and respect. The affected employee may have grounds to file a constructive dismissal claim in court.
For a poisoned work environment to lead to a finding of constructive dismissal the harassment, discrimination, or bullying must be persistent and repeated, or there must be one sufficiently egregious situation such that continued employment is intolerable for the employee.
The employee has the responsibility (i.e. onus) of establishing that the workplace was poisoned. The employee’s subjective feelings are insufficient. Instead, the employee must establish that a reasonable person in the employee’s position would have viewed the employment relationship as coming to an end due to the egregious conduct.
If you believe you have been subject to a poisoned work environment, it is important to seek legal advice from a knowledgeable employment lawyer before you take any action. A lawyer can explain your options, including any that you may be able to access internally through human resources or otherwise in your workplace. At HMC Lawyers LLP, we regularly assist employees with workplace matters, including questions about constructive dismissal. To book a consultation, call 1-800-480-3534 or contact us online. We represent clients in Calgary, throughout Alberta, and across Western Canada.