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ARTICLE

Discrimination and Harassment: Know your rights (Professional Relations Services)

Professional Relations Services Staff
Fall 2011

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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
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.

ENHANCED PROTECTION
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.