The Prevention of Psychological Harassment & Bullying in the Workplace Cory Boyd Rubin Thomlinson LLP October 28, 2014 1:00 PM to 3:00 PM Humber College’s Commitment “The Humber College Institute of Technology & Advanced Learning and the University of GuelphHumber (hereafter referred to as “Humber” or “the College”) has the right, as well as the legal and moral responsibility, to ensure that all its members are treated fairly, equitably, and respectfully, in order to provide a learning, living and working environment that is free from discrimination and harassment.” Agenda • Introduction • What is Psychological Harassment? • Relationship Between Psychological Harassment/Bullying and the Ontario Human Rights Code • Identifying Psychological Harassment • Scenarios • Impact of Psychological Harassment on the Workplace • Best Practices for Preventing Psychological Harassment and Bullying Two Types of Harassment: • Harassment based on a “prohibited ground” of discrimination (Code-based); and • “Personal” (or psychological) harassment, bullying or other workplace harassment that is not based on a prohibited ground (non-Code) Code-Based Harassment: • “Harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome – Human Rights Code, R.S.O. 1990, CHAPTER H.19 Prohibited Grounds: 1. 2. 3. 4. 5. 6. 7. 8. 9. Race Sex Sexual Orientation Disability Age Marital Status Family Status Place of Origin Colour 10. Ethnic Origin 11. Citizenship 12. Creed/Religion 13. Record of Offences 14. Gender Identity 15. Gender Expression 16. Ancestry 17. Receipt of Public Assistance Psychological Harassment “Workplace Harassment” means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome – Occupational Health and Safety Act, R.S.O. 1990, CHAPTER O.1 Psychological Harassment (Cont’d) Personal/Psychological Harassment: Behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that result in a harmful work environment for the employee. It includes and is not limited to behaviours defined as bullying, mobbing, victimization, emotional abuse, psychological abuse, and psychological violence. – Humber Human Rights Policy Psychological Harassment (Cont’d) A single serious incident of such behaviour that has a lasting harmful effect may constitute psychological harassment. It must be demonstrated that this behaviour affects the person’s dignity or physical or psychological integrity and that it results in a harmful work environment for the employee. – Humber Human Rights Policy Psychological Harassment (Cont’d) Note: Harassment does not occur where a supervisor gives legitimate directions or instructions to an employee in the course of employment or conducts performance reviews in accordance with the college's normal procedures. – Humber Human Rights Policy Harassment Includes: • Unwelcome remarks, jokes, slurs, innuendoes or taunting; • Hazing, stalking or shunning; • The repeated mistreatment of one employee, targeted by one or more employees with a malicious mix of humiliation, intimidation and sabotage of performance (bullying); • Displaying derogatory or offensive pictures, graffiti or materials either through printed copy or personal computer; Harassment Includes: (Cont’d) • Verbal abuse; • Insulting gestures or practical jokes which cause embarrassment or awkwardness; • Unauthorized and/or unnecessary physical contact; and • An impassioned, collective campaign by coworkers to exclude, punish and humiliate a targeted worker. – Humber Human Rights Policy Psychological Harassment May Include: Shouting; Use of profanity and abusive language; Slamming doors; Throwing objects; Embarrassing, humiliating, degrading, demeaning, or belittling another person; • Name calling, persistent teasing where one person is the object; • Threats and intimidation; • • • • • Psychological Harassment May Include: (Cont’d) • Malicious gossip; • Cyber bullying, negative blogging including e-mails and Facebook postings; • Retaliation; • Bullying or shunning; • Inappropriate use of progressive discipline to “get” someone; and • Blow-ups and eruptions at a person. Misconceptions About Harassment • • • • • Requires intention Can joke or comment about one’s own group Must be ongoing Silence = consent Is only harassment if told to stop Caselaw Review • United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA) • Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII) • Ljuboja v. Aim Group Inc, 2013 CanLII 76529 (ON LRB) • Peterborough Regional Health Centre v. Ontario Nurses' Assn. (Withers Grievance), 2012 CanLII 52238 (ON LA) Caselaw Review • Ontario Public Service Employees Union (Marsh et al) v. Ontario (Community Safety and Correctional Services), 2014 CanLII 13355 (ON GSB) • Parsons v. Simcoe County District School Board, 2012 CanLII 395 (ON LRB) Scenario #1 Rajula is a hands-on manager with high expectations. When she is unhappy with someone’s work, she will often criticize their work in front of other employees and clients. During meetings, Rajula will take feedback from her high performing employees but is very dismissive when others speak. On one occasion, she told an employee that until he can do his own job, she is not interested in his thoughts on how she could do hers. Scenario #2 Marjorie recently returned to her position following a maternity leave. Since her return, whenever she has made a minor mistake at work, her supervisor Eileen has told her not to worry as she remembers what it’s like to have “Mom brain”. Her supervisor also recently said to her that she needed to be more precise in her communication as she isn’t “talking to toddlers anymore”. Scenario #3 Eric and Tamika both work as managers and both are regularly asked to investigate misconduct. They often disagree about an interpretation of the Human Rights Code and do not always agree on investigation findings. On one occasion, Tamika spoke to one of the parties in an investigation conducted by Eric and let him know that she thought Eric had made a mistake. Eric heard she also told a team of employees that they should come to her with any complaints because she is the only manager who knows what she’s doing. Where is Psychological Harassment Occurring? Workplace Bullying Institute (2010 Study) • 35% of workers have experienced bullying firsthand • 62% of bullies are men; 58% of targets are women • Women bullies target women in 80% of cases • Bullying is 4X more prevalent than Code-based harassment • The majority (68%) of bullying is same-gender harassment Impact of Psychological Harassment Workplace Bullying Institute (2012 Study) The top 10 health problems from bullying, ranked from most to least frequent, were: 1. Anticipation of next negative event 2. Overwhelming anxiety 3. Sleep disruption (hard to begin/too little) 4. Loss of concentration or memory 5. Uncontrollable mood swings 6. States of agitation or anger 7. Pervasive sadness 8. Heart palpitations 9. Insomnia 10. High blood pressure (hypertension) Impact of Psychological Harassment From an organizational perspective: • Low morale • High turnover • Low productivity • Lost innovation • Hiring and enrolment challenges • Financial costs • Reputational Signs of trouble: • • • • • • • Excessive absenteeism Short-term or long-term disability Decrease in productivity Moodiness or erratic behaviour Members of group isolated Requests for transfer Resignation Addressing Psychological Harassment – The Legal Requirement Obligations under the Occupational Health and Safety Act: • Create measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor, which may include information about: How, when and to whom a worker should report incidents; Forms or other reporting mechanisms; and Roles and responsibilities of employers, supervisors, workers and others in the incident reporting process. Addressing Psychological Harassment – The Legal Requirement • Create measures and procedures for how the employer will investigate and deal with incidents and complaints of workplace harassment, which may include information about: How and when investigations will be conducted; What will be included in the investigation; Roles and responsibilities of employers, supervisors, workers and others; Follow-up to the investigation (description of actions and timeframe); and Recordkeeping requirements. Beware: • The “under-response” • Making assumptions about what really happened • Allowing knowledge of people involved to affect action taken Organizational Best Practices for Preventing Psychological Harassment and Bullying • • • • Strong commitment from the top Educate staff and students Empower victims to come forward Develop a strong compliance framework Organizational Best Practices for Preventing Psychological Harassment and Bullying • Ensure leaders model appropriate behaviour • Investigate complaints • Assume the allegations are true and ask the threshold question • Implement recommendations • Restorative interventions – coaching and counseling What Can I Do? • • • • • • Educate yourself See something, say something Avoid gossip and office politics Do not minimize behaviour Be an advocate Communicate respectfully Create a Culture of Respectful Communication • Recognition: Thanking employees and co-workers and acknowledging their contributions on a daily basis. • Empowerment: Providing employees with the tools, resources, training, and information they need to be successful; sharing these tools with co-workers. • Supportive feedback: Giving ongoing performance feedback — both positive and corrective. • Partnering: Fostering a collaborative working environment. Create a Culture of Respectful Communication • Expectation setting: Establishing clear expectations and holding employees accountable. • Consideration: Demonstrating thoughtfulness, empathy, and kindness. • Trust: Demonstrating faith and belief in colleagues’ skills, abilities, and decisions. – Paul Marciano, Carrots and Sticks Don’t Work: Build a Culture of Employee Engagement with the Principles of RESPECT Questions?