Employer's legal obligations in protecting service workers
A lot of education and legal cases explore employers’ shortcomings and obligations when it comes to addressing a worker’s complaints of harassment and discrimination against co-workers or managers. While complaints of harassment and discrimination will undoubtedly arise in day-to-day workplace interactions and must be addressed, an employer’s obligations towards its workers do not stop there.
Employers are required to take reasonable steps to address workers’ complaints of harassment and discrimination and safety concerns that arise out of interactions with third parties who are customers and service recipients. Examples of third parties include tenants, customers, clientele, and patients.
This obligation is found under human rights legislation, occupational health and safety legislation, and the common law. In Ontario, for example, the Human Rights Code captures a worker’s right to be free from discrimination and harassment (based on a code ground) in the course of employment and the Occupational Health and Safety Act (OHSA) captures the right to be free from harassment and sexual harassment.
To date, the courts continue to reference Laskowska v. Marineland of Canada Inc. 2005 HRTO 30, as the case that sets out what it means to take reasonable steps to address complaints of discrimination and harassment (based on a code ground). They are as follows: awareness of the discrimination/harassment, applicable policies, company complaint mechanisms and training; the employer’s post-complaint conduct such as seriousness, promptness, investigation and action; and resolution of the complaint, including communication and providing the complainant with a healthy working environment.
The OHSA specifically requires employers to prepare policies with respect to violence and harassment and a program to implement the policy.
Prevention through policy and training is the first step. Having policies and training in place ensures that workers and members of management are aware of the definitions of discrimination and harassment and company complaint mechanisms. While workers may not expect third parties to be aware of or receiving training on the company’s harassment and discrimination policies, the workers should receive adequate training so they know what to do should they encounter issues with third parties.
To the extent that is possible, third parties should also be made aware that while obtaining services from a company’s workers, they are expected to abide by requirements that allow for a safe and discrimination-free environment. For example, this could be done through posting a policy in a store or through disseminating policies to more long-term service recipients such as tenants and patients.
Responding to workers’ complaints in a way that is proportionate to the situation and meets the legislative obligations will vary depending on each scenario. Some cases may require simply addressing the third party on the spot, whereas others may require formal investigations and remedial action. In general, a starting point should involve meeting with the worker to understand what happened and what their concerns are. Where mental health impact is involved, employers may also be required to take measures to accommodate the worker. For example, an employer may need to consider ways to prevent the third party from being on the premises or from being able to interact with the worker.
Failing to intervene and/or act could lead to numerous consequences, including workers going on medical leaves, worker’s compensation entitlement for mental health impact, and financial damages.
Here are some recent case law examples:
In A2302045 (Re), 2024 CanLII 84868, a manager’s inactivity and lack of response when a worker dealt with two customers who were combative, advanced aggressively towards her, swore at her and called her names played a role in the worker’s entitlement to compensation under the BC Workers Compensation Act. In this case, the worker reported that when she reached out to her manager for help dealing with the customers, he told her he could not help because he was on his lunch break. The inaction of the manager was viewed as relevant to the impact on the worker, as she was left to deal with the customers on her own and felt unsupported, aggravating her pre-existing generalized anxiety disorder.
In Stride v. Syra Group et al., 2024 ONSC 2169, the court found that while police involvement had resulted in criminal charges and convictions being laid against tenants who had subjected a female superintendent to discrimination and harassment, the employer had not had a violence and harassment policy in place, and had not taken reasonable steps or any remedial steps to address the superintendent’s concerns. This included simply permitting the tenants to return to the building where the superintendent worked, after the conditions of their peace bond and probation had ended. In this case, while the police had become involved, the court found that the employer was still obligated to conduct its own investigation and put safety mechanisms in place. As this was a case of wrongful dismissal, the failure to intervene to stop the harassment done by the third parties resulted in an additional award to damages.
Some situations can be chalked up to difficult or unhappy customers, but there are times when third-party service recipients cross a line and subject a company’s workers to conduct that could create an unsafe and/or a discriminatory working environment. In these cases, an employer will be expected to have a policy in place to deal with this, to respond promptly, and to take reasonable steps to address the worker’s complaints.
Shannon Sproule is an employment lawyer and workplace investigator at Turnpenney Milne in Toronto.