Tag archives: harassment

This is not a locker room: Do not publicly criticize your employees

Toronto Raptors head coach  recently made headlines for unfiltered comments about his team members. This season, he has publicly called out a number of them for their poor performances. Some have commended him for giving team members the motivation they needed to perform better – by providing them with “tough love” instead of sugar-coating the truth about their lacklustre performance. However, the reality is very different when it comes to managing employees in the workplace. Indeed, publicly criticizing your employees may form grounds for a harassment complaint.

In Ontario, the Occupational Health and Safety Act outlines an employer’s responsibilities in … Continue Reading

France: Le harcèlement sexuel susceptible d’être exclu en cas d’attitude ambigüe de la victime

Le harcèlement sexuel est défini, dans le Code du travail, par « des propos ou comportements à connotation sexuelle répétés qui soit portent atteinte à [la] dignité [du salarié] en raison de leur caractère dégradant ou humiliant, soit créent à son encontre une situation intimidante, hostile ou offensante ».

Le Code du travail prévoit également une assimilation aux faits constitutifs de harcèlement pour « toute forme de pression grave, même non répétée, exercée dans le but réel ou apparent d’obtenir un acte de nature sexuelle, que celui-ci soit recherché au profit de l’auteur des faits ou au profit d’un Continue Reading

France: Provocative acts do not necessarily fall within the scope of sexual harassment if the victim’s behaviour is ambiguous

The French employment Code defines sexual harassment as “repeated sexual comments or conduct that either violate the [employee’s] dignity because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation against the employee“.

The French employment Code also assimilates to sexual harassment “any form of serious pressure, even non-repeated, exercised for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party“.

However, on 25 September 2019, the French Supreme Court (Cour … Continue Reading

Allégations d’harcèlement psychologique dans l’exercice d’activités syndicales : l’employeur doit-il intervenir ou bien s’abstenir?

Bien connue est l’obligation de l’employeur en vertu de la Loi sur les normes du travail (LNT) de prévenir le harcèlement psychologique, d’enquêter lorsqu’un tel comportement est porté à son attention et d’intervenir pour faire cesser la conduite harcelante. Mais que se passe-t-il lorsqu’une plainte est déposée à l’employeur pour harcèlement psychologique entre des représentants syndicaux dans l’exercice de leurs activités syndicales? L’obligation de l’employeur de ne pas s’ingérer dans les activités syndicales est alors confrontée à celle de faire cesser les comportements harcelants, créant une zone grise. L’employeur doit-il intervenir ou bien s’abstenir?

Une récente décision du … Continue Reading

French employment law : Key developments expected for 2019

The French authorities have been very prolific in the area of effecting reforms to employment law, and 2019 will not be an exception to this general rule (although perhaps less so than was the case in 2017 and 2018).

First, in 2019, a certain number of reforms promulgated in 2017 and 2018 will either come into force become fully effective:

  • As of January 2019, all companies have become subject to the requirement to withhold income tax from salaries paid to their employees. This change had been under discussion for a fairly long time and was initially planned to enter into
Continue Reading

Ontario Court of Appeal Decides Against Recognizing Tort of Harassment

On March 15, 2019, The Ontario Court of Appeal released its decision in Merrifield v. Canada (Attorney General), reversing a trial decision in which the Ontario Superior Court of Justice had recognized the existence of a common law “tort of harassment”.

The plaintiff’s claim was based on conduct that he had experienced during his employment with the Royal Canadian Mounted Police (RCMP), which he claimed amounted to bullying and harassment. He complained about several unit reassignments, an investigation into his work-related expenses, and an assessment of a potential conflict of interest.

The Court of Appeal found that … Continue Reading

Dismissal for misconduct cannot be based (solely) on anonymous reports

Anonymous reports have been mistrusted for a number of years in France, for historical reasons. While anonymity enables individuals to raise their voice more openly, without being the targets of retaliation measures, it can also drift into slander.

This explains a specificity of French law under which whistleblowers using ethicals lines are strongly encouraged to disclose their identity since generally speaking, , anonymous reports are not acceptable (although a limited number of exceptions are available).

It is only very recently that the French Supreme Court had to resolve a case involving an employee dismissed on the basis of anonymous reports.… Continue Reading

AHRC launches national inquiry into sexual harassment in Australia

The Australian Human Rights Commission (Commission) has recently launched an inquiry into sexual harassment in Australian workplaces (Inquiry). It seems that the ‘watershed’ moment that the #MeToo campaign was hailed as, has indeed driven the momentum to keep the issue alive and for meaningful action to come from it.

There can be little argument that a culture that tolerates, condones or rewards inappropriate conduct or the wrong behaviours creates real and significant risk for an organisation – from a legal, commercial and reputational perspective.   It is essential, both at Board and executive level, that there is an awareness and understanding … Continue Reading

New York City employers take note: New anti-sexual harassment laws enacted

On May 9, 2018, New York City enacted a number of laws addressing sexual harassment in the workplace.  The laws are summarized below.  New York City employers who do not yet have anti-harassment and anti-retaliation policies in place should promptly begin the process for adopting them.  New York City employers should also begin to make arrangements for providing their employees with anti-harassment training (upon hire and annually thereafter).  Such training is now required under both New York State and New York City law.  New York State’s law, which was also recently enacted, will become effective first.  For a brief discussion … Continue Reading

The #MeToo Movement: When Employees Take Their Complaints to Social Media

As we are all aware, the news has been populated with stories concerning allegations of sexual harassment and misconduct, particularly in the entertainment and media industries as well as government institutions. These stories have contributed to the “#MeToo” movement, which originated on Twitter and other social media websites in late 2017 and has since become a widespread message on social media encouraging individuals to share their stories and speak out against sexual harassment and abuse. But while its purposes are laudable, the #MeToo movement is a touchy subject for employers, who ever-more-frequently find themselves accused of sexual harassment or other … Continue Reading

Harassment and violence in the workplace : changes to be expected for federally regulated employers

After a few politicians at the federal and provincial levels recently stepped down because of sexual misconduct allegations, lawmakers debated Bill C-65 in the House of Commons this week.

Tabled in November 2017, Bill C-65 aims to amend “the Canada Labour Code (CLC) to strengthen the existing framework for preventing harassment and violence, including sexual harassment and sexual violence, in the workplace”.

Minister of Employment, Workforce Development and Labour Patty Hajdu’s approach is focused on occupational health and safety, with amendments to Part II of the CLC to bring psychological injuries or illnesses in the realm of workplace accidents to … Continue Reading

Un salarié protégé peut-il contester la rupture conventionnelle homologuée dont il a fait l’objet devant le juge judiciaire ?

Les salariés protégés (représentants du personnel, délégués ou représentants syndicaux, salariés mandatés, etc.) bénéficient d’un statut particulier, eu égard à leur rôle dans l’entreprise. A ce titre, toute modification, et a fortiori, rupture de leur contrat de travail doit être autorisée par l’inspection du travail.

La conclusion d’une rupture conventionnelle homologuée, quand bien même il s’agit d’un mode de rupture qui suppose l’accord du salarié, ne déroge pas à cette règle. Afin que la rupture conventionnelle soit valablement conclue, l’employeur doit par conséquent solliciter et obtenir l’autorisation de l’inspection du travail.

Cette procédure a une incidence directe sur le contentieux … Continue Reading

Employer ordered to pay $141,000 for tort of harassment and intentional infliction of mental suffering at the workplace

In a previous post on this blog, we discussed how an employer’s non-compliance with workplace harassment and violence provisions of the Occupational Health and Safety Act resulted in a $70,000 fine ordered against the employer. Recently, the Superior Court reminded employers of the importance of ensuring that a harassment-free workplace is maintained and that all complaints are taken seriously and thoroughly investigated. After 40 days of trial spanning over the course of a year and a half, the Court in Merrifield v Canada (Attorney General) ordered the Royal Canadian Mounted Police (“RCMP”) to pay general damages of $100,000 and special … Continue Reading

Human resources managers can be indirectly liable for harassment

Health and safety of employees is highly protected in France. Employers are  responsible for the prevention of any damage to their employees’ health and safety resulting from their work. Amongst other things, French law requires employers to ensure that their employees are protected from any harassment at work.

But another provision of the French Employment Code, which is far less known outside of France, states that employees are also liable to take care, not only of their own health and safety, but also of that of other employees in the company who could be affected by their behaviour or negligence.… Continue Reading

“Promising practices” encouraged by EEOC to prevent retaliation

The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final “Enforcement Guidance on Retaliation and Related Issues” following a six-month public comment period. The guidance replaces the EEOC’s 1988 Compliance Manual section on retaliation.

Workplace retaliation claims have been on the rise in recent years and have been the focus of several opinions of the U.S. Supreme Court in the past two decades. In fact, charges of retaliation exceeded race discrimination claims in 2009 and comprised nearly 45 percent of all charges received by the EEOC in 2015.

In addition to defining retaliation and providing over thirty … Continue Reading

“What are the latest developments on whistleblowing in the workplace in Germany?”

Apart from the well-known Wiki-leaks, recent prominent cases of whistleblowing such as Lux-leaks, the Panama Papers or the case of the German geriatric nurse Brigitte Heinisch, who was dismissed after revealing the ill-treatment of elderly people in a Berlin retirement home, continue to highlight the continued relevance of the topic “whistleblowing”. While this has resulted in an increased public awareness and consequent expectation of global corporate accountability, the subject remains a complex matter of opposing interests: on the one hand, the public interest in ensuring that companies, authorities and organisations comply with the law, and on the other hand, the … Continue Reading

EEOC continues its efforts to incorporate sexual orientation and gender identity into Title VII protections

On March 1, 2016, the EEOC filed two cases with one clear goal: to expand the meaning of “sex” under Title VII. In EEOC v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa.),  the agency alleges that the defendant harassed an openly gay male employee because of his sexual orientation, thereby committing unlawful sex discrimination under Title VII.  The Complaint suggests the employee’s manager repeatedly directed homophobic slurs at the employee, conduct the agency characterizes as “motivated by [the employee’s] sex (male), in that sexual orientation discrimination necessarily entails treating an employee less favorably because of his … Continue Reading

Investigating Workplace Violence under the Canada Labour Code

What responsibilities does a federal employer have to appoint a competent person to investigate a complaint of work place violence under the Canada Labour Code? The Federal Court of Appeal recently released Canada (Attorney General) v. Public Service Alliance of Canada (PSAC), a decision which elaborates on this duty.

In PSAC, the court was faced with a situation where a poultry inspector had made a claim regarding favouritism, unfair treatment, humiliation, and disrespectful treatment in the workplace. The employer looked into the matter but did not select an impartial, competent person as required by Part XX … Continue Reading

Human Rights and Independent Contractors in Ontario

When working with independent contractors or the self-employed, companies should be aware that the Human Rights Code protections may still apply. A recent decision of the Human Rights Tribunal reiterates the fact that discrimination and harassment can be found “with respect to employment” even in the absence of a traditional employer-employee relationship.

The decision dealt with the application of a self-employed commission salesperson who worked under the supervision of a man who was the broker of record at the brokerage firm that the saleperson worked at. The salesperson alleged that she was harassed by the supervisor, beginning at a holiday … Continue Reading

Current status of legal protections for sexual orientation and gender identity in employment

As the workforce becomes more and more diverse, sexual orientation and gender identity have become very hot topics in discussions regarding employee rights. It may be surprising to learn that neither is considered a protected class under current federal employment discrimination law in the United States.

At last count, however, 32 states, including the District of Columbia, have passed laws prohibiting employment discrimination based on sexual orientation and/or gender identity. While federal government employees and contractors enjoy similar protections, Congress has yet to expand the statutorily protected classes of race, color, sex, religion, national origin, age, disability, and genetic information … Continue Reading

Sexual harassment in Toronto’s restaurants

Recently, allegations of sexual harassment in the kitchen of a trendy Toronto restaurant have ignited a dialogue about workplace harassment. While this doesn’t excuse it, industry veterans aren’t surprised by the complaint, saying that many of Canada’s restaurants have a workplace culture that is overwhelming male, close-knit, and full of sexualized banter.

The employee at the heart of the controversy says she was aware of the industry’s reputation when she accepted the job. “I just thought this came with the job and it was something I just had to overcome,” she reports.

In Ontario, sexual harassment in the workplace … Continue Reading

The employer’s refusal to adapt the employee’s workstation may constitute moral harassment

The legal context

Under French employment law, employers are under a strict duty of care which requires them to ensure the protection of their employees’ health and safety (duty of care), the mere breach of such obligation will trigger their liability even if there is no fault on their part. Such duty of care is interpreted very extensively by case law. In this context, employers should comply strictly with the opinions and recommendations of the occupational health physician, particularly in the framework of medical visitation following an employee’s sick leave.

In addition, French employment law also strictly prohibits moral harassment. … Continue Reading

What protection do employees have against discrimination on grounds of age?

To begin with, employment discrimination on grounds of age is not a problem only for workers in a specific age group in Colombia. For instance, young people feel discriminated against because of their lack of experience when seeking jobs for the first time, and the elderly feel rejected and undervalued when they are interested in finding a new job, or even keeping their current one.

Colombia’s Constitution, laws and jurisprudence strictly protect the principle of equality, and penalize any kind of discrimination based on age. Furthermore, Article 53 of the Constitution establishes fundamental labour principles, providing equal opportunities for employees … Continue Reading

Termination for Facebook post upheld by arbitrator – Despite absence of social media policy

The recent decision of United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA) provides an example of how a unionized employee’s off-duty social media behavior can justify dismissal, despite the absence of any reference to social media in the company’s harassment policies.

The grievor was a crane operator who took issue with a female co-worker’s job performance as a stocker. Following his shift, the grievor posted comments on his Facebook page about the stocker referencing one of her distinctive physical features. A third co-worker commented on the post and suggested performing a … Continue Reading

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