Teachers from across the province came to Toronto in August to take part in ETFO’s new Teachers
Discrimination and Harassment: Know your rights (Professional Relations Services)
Every year, ETFO members contact us with questions and concerns about discrimination and harassment in the workplace. Understanding your rights will help you protect yourself.
Like other workers in Ontario, ETFO members are protected from harassment and discrimination by the Ontario Human Rights Code. Protection from harassment and violence in the workplace has recently been enhanced by the Occupational Health and Safety Act.
YOU HAVE THE RIGHT TO BE FREE FROM DISCRIMINATION AND HARASSMENT
The Ontario Human Rights Code gives everyone the right to equal treatment with respect to employment without discrimination or harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, gender, sexual orientation, age, record of offences, marital status, family status, or disability. These are called the “enumerated grounds.” Potentially harassing comments or actions are those that the offender knows, or ought reasonably to know, are unwelcome to you. A “course of conduct” – a pattern of behaviour – is often needed to prove harassment.
Your subjective perception of the unwelcome conduct may not be enough to prove that it is unlawful: you must have facts to show that an objective person would similarly see the behaviour or comments as harassing. Also, the legitimate exercise of management rights, such as criticism during a teacher performance appraisal, will not normally constitute harassment under the Code. Each case must be examined on its facts, and on the pattern of treatment toward you, including your treatment during performance appraisal.
Sexual harassment is a specific form of harassment based on gender. It includes unwelcome sexual contact, remarks, leering, inappropriate staring, unwelcome demands for dates, requests for sexual favours, and displays of sexually offensive pictures or graffiti. A colleague or administrator’s repeated and vulgar sexual comments could constitute sexual harassment. However, the behaviour does not have to be explicitly sexual in nature. Someone may harass you because of gender-based ideas about how men or women should look, dress, or behave. If you are a transgendered person, you are protected from degrading comments, insults, or unfair treatment related to your gender identity.
Recently the Occupational Health and Safety Act (OHSA) was amended to provide enhanced protection from workplace harassment. The amendments (contained in Bill 168) broaden the definition of workplace harassment beyond that found in the Ontario Human Rights Code. In other words, work- place harassment in the OHSA is not confined to the enumerated grounds. School boards, like other Ontario employers, must now prepare new policies designed to prevent harassment and must develop and maintain a program to implement them. The policy must include procedures for workers to report incidents of workplace harassment to their employer or supervisor. It must also describe how such incidents and complaints will be investigated and addressed. School boards must make these policies known to you.
VIOLENCE IN THE WORKPLACE
The new OHSA amendments also aim to protect you from workplace violence whatever the source: colleagues, administrators, students, or parents. The amendments define workplace violence as the exercise of physical force, or an attempt or a threat to exercise physical force that causes or could cause physical injury.
Physical violence or the threat of violence does not need to be intentional to require action. Furthermore, school boards must conduct a risk assessment to determine who in the school community poses a risk of violence and must inform you if you will be interacting with that person.
In addition, students face consequences under the Education Act for bullying or harassment, including cyber-bullying, even if it takes place outside the school but affects the school community. Such actions can lead to suspension or expulsion.
HOW DO YOU ENFORCE YOUR RIGHTS?
- You may be able to file a grievance. Your collective agreement contains clauses that prohibit discrimination and harassment under the Code, and clauses to protect your working conditions and health and safety. Even if your collective agreement is silent on these topics, arbitrators have the right to consider and apply these statutes when ruling on your grievance.
- You may wish to exercise your right to a work refusal if violence makes your workplace unsafe. Ministry of Labour inspectors can also order the employer to take measures to ensure a safe workplace.
- You can file a harassment complaint under school board policies. All policies have a complaints mechanism.
- You may file a complaint with the Human Rights Tribunal in cases involving discrimination or harassment on the basis of enumerated grounds.
These options are not mutually exclusive. In all cases consult your local president or ETFO PRS staff to determine how to proceed.
When in doubt, consult.
I recently completed my sixth year of teaching in the Toronto District School Board (TDSB), working with students from grades 6 to 8.