Poisoned Work Environment: An Employer’s Responsibility
I am often asked what “poisoned work environment” means. My thought is that while many people have heard the term and may even use it occasionally, they are not really sure what it is. A recent HRTO decision provides some clear guidance as to what a poisoned work environment is, how it often arises, and what the employer’s responsibility is.
In Crete v. Aqua-Drain Sewer Services Inc., 2017 HRTO 354 (CanLII) the Tribunal dealt with an application respecting an employer’s failure to investigate complaints of sexual harassment, allegations of a poisoned work environment and reprisal. The applicant’s evidence was that she disclosed to the co-owner of the employer that her immediate supervisor had hugged and kissed her, draped his arms around her when he came to her desk and that she was afraid to be alone with him. In her complaint to the employer, the applicant stated that the behaviour was not appropriate and needed to be addressed. The employer did not respond to the complaint. The applicant gave further evidence to the Tribunal that she had been approached by a male colleague who asked her to have sex with him, another who asked if he could come to her house when her husband was late, and the operations manager who called her “sugar tits” and made inappropriate comments about women and their appearance. Shortly after the “sugar tits” incident, the applicant was called into a meeting and terminated with two weeks’ notice.
The Adjudicator reiterated that employers have a duty to maintain workplaces free from harassment and discrimination and must take steps to address complaints of human rights violations. The failures of the employer included: lack of an harassment and discrimination policy, complaint mechanism and staff training; lack of follow-up with the applicant if an investigation had been conducted; and an ongoing culture of sexualized comments and degrading remarks.
As to the existence of a poisoned work environment the Adjudicator commented that when a person was subject to discrimination and harassment in the workplace, the work environment could become “poisoned”. In certain circumstances, sexually charged comments and conduct can constitute a discriminatory term or condition of employment contrary to the Code. The Adjudicator stated, “The term “poisoned work environment” is usually applied in circumstances where the work environment has become toxic because of pervasive discrimination or harassment, most commonly involving grounds relating to race or sex.”
In finding that the employer created a “poisoned work environment” consideration was given to the following factors: the power differential between the applicant and her immediate supervisor; the employer was aware that the comments and conduct were unwelcome through the written complaint of the applicant; the sexualized comments did not stop and by allowing the behaviour to continue, the employer permitted the harassment to become a term or condition of employment.
The Adjudicator noted that the employer claimed that there was no “ill intent” on the supervisor’s part or in a co-worker using the expression “sugar tits”. However, lack of intent did not make the behaviour acceptable and did not absolve the employer of its duty to ensure that the workplace was free from vexatious comments or conduct. Ultimately the poisoned work environment finding was based on the failure of the employer to set the tone for appropriate workplace communication which would have included articulation that sexualized, discriminatory and harassing behaviours were unacceptable and inappropriate.
- Employers must have appropriate harassment and discrimination policies that include complaint mechanisms. Staff need to be trained on the policy contents.
- Employers must be live to sexualized comments and conduct and clearly communicate that they are inappropriate and must stop. Continuation of sexualized and harassing behaviour can become a discriminatory term and condition of employment contrary to the Code.
- Employers have an obligation to investigate concerns brought to their attention and communicate the outcome of the investigation to the parties.
- Intention is irrelevant in finding that a poisoned work environment exists or absolving an employer of its responsibility to provide a workplace free from harassment and discrimination.
About the Author: Toronto Employment Lawyer Kenda Murphy is a lawyer with over 20 years of experience in civil and criminal litigation. Over the course of her career, she has been in private practice and worked in the public sector with the Public Prosecution Service, Department of Justice and Health Association Nova Scotia. Most recently Kenda was the Associate Director & Counsel of the Employee/ Labour Relations Unit at Queen’s University.