Factors for employers to consider in discriminatory harassment cases
When an investigation into workplace harassment reveals a broader pattern of hostile, negative, or toxic behaviour that impacts the work environment, a decision maker may find that an employee’s harassing conduct has created a poisoned work environment, and the employer can be held liable for the employee’s conduct.
This is because a poisoned work environment is a violation of an employer’s obligation to provide a discrimination-free environment – in Ontario, for example, under s. 5(1) of the Ontario Human Rights Code.
This article aims to define the concept of a poisoned work environment, explain its connection to workplace harassment, and outline the liability consequences for an employer where a poisoned work environment is found under the code.
Section 10(1) of the code defines “harassment” as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
Although the related concept of a “poisoned work environment” is not defined in the code, case law provides guidance on the type of conduct that constitutes a poisoned work environment. In George v. 1735475 Ontario Limited, 2017 HRTO 761, the Ontario Human Rights Tribunal explains that a poisoned work environment is a work environment where comment or conduct in the workplace is sufficiently egregious and/or pervasive that it effectively becomes a term or condition of the affected employee’s employment to be required to work in such a poisoned environment.
As reflected above, a poisoned work environment refers to a broader, more persuasive issue. It is harassing or discriminatory conduct that creates an overall hostile, intolerable, and negative work environment. It can be a single incident or a pattern of behavior that essentially makes the working environment intolerable.
The concepts of workplace harassment and a poisoned work environment are closely linked, as a finding of workplace harassment is a precondition for a poisoned work environment.
For a decision maker to find workplace harassment, three things must be established based on the evidence: there is a “course” of conduct; the conduct is reasonably “vexatious”; and that course of comment or conduct is “known or ought reasonably to be known to be unwelcome.”
For harassment to be found under the code, it must be established based on the evidence that the harassment occurred due to a protected ground – established in George and recently cited in Rougoor v. Goodlife Fitness Centres Inc., 2024 HRTO 312.
Once workplace harassment has been established, the issue often becomes whether a poisoned work environment has also been created. The test for a poisoned work environment is an objective reasonable bystander standard - whether there is evidence that an objective reasonable bystander would conclude that a poisoned work environment had been created (see George, Crepe It Up! v. Hamilton, 2014 ONSC 6721 as well as General Motors of Canada v. Johnson, 2013 ONCA 502.
It is important to note that the objective reasonable bystander standard means that the complainant does not have to specifically allege a poisoned work environment has been created. Based on the evidence, if an outsider looking into the circumstances would find that the alleged harassing conduct would create a poisoned work environment, then the test is met.
As outlined in the test, a finding of workplace harassment generally requires a pattern of comment or conduct, whereas caselaw states that a poisoned work environment can be found even if there is a single or “stand-alone” incident (if the single incident is particularly egregious). For instance, sexual harassment has generally been found to be a “particularly egregious” incident to meet the threshold for a poisoned work environment - see McWilliam v. Toronto Police Services Board, 2020 HRTO 574.
Under s. 46.3(1) of the code, an employer respondent to a human rights application is not automatically deemed liable “for acts or omissions of its officers, officials, employees or agents” that violate the harassment protections under the code, as these provisions have expressly excluded deemed liability.
However, where a poisoned work environment is found, the case law is clear that an employer will be deemed liable regardless of whether the comments or conduct found to create the poisoned work environment were reported to management, whether or not management took reasonable steps to address the comments or conduct, or whether the person responsible for the comments or conduct that created the poisoned work environment were part of the “directing mind” of the organization or were just co-workers.
Employers should ensure that the workplace has a clear and robust anti-discrimination/harassment policy in place that also includes a clear complaints mechanism that employees are aware of. All employees should be trained in this policy annually to set the baseline of acceptable conduct in the workplace.
To further prevent issues from developing, employers must actively monitor the workplace and act on issues as soon as they arise. Hopefully, with these proactive measures, employers can avoid or at least minimize workplace harassment and/or poisoned work environment complaints.
