Human Rights in the Workplace » Tips

The crucial importance of note-taking when dealing with workplace human rights issues

Donna Seale — Mon, 25 Jan 2010 06:00:01 +0000

We all write notes for ourselves at some point or another, for one reason or another. Whether it be a ‘to do’ list, a goal list, a diary entry of what we did that day or a reminder to pick up eggs at the store, notes help us in innumerable ways in our daily lives. Notes are also critical in our work lives as well. They keep us on task. They help us remember what has been said or done in the past. They establish expectations.

Yes, notes are important for a whole host of reasons, both personal and professional, but from my perspective they are absolutely critical if you, as a manager/supervisor/employer become aware of a potential human rights issue in your workplace. By writing down what an employee has told you they have concerns about and what you did in response along with relevant dates and times and places, notes become key defense tools should questions ever be raised down the road about whether management appropriately handled a human rights issue, regardless of what it relates to.

Created pre-complaint, notes are often considered to be one of the most reliable pieces of evidence to be considered during a formal process. Certainly, when I am brought in to investigate a complaint I ask everyone and their dog if they made notes and I ask to see them right away. Often, the notes can short-circuit the investigation process, making it more efficient than it would have been without them. For example, let’s say a complainant employee is contending that they told their manager they were being subjected to racially-based harassment and the manager did nothing in response. Let’s also say that when I interview that manager, the manager recalls a conversation with the employee and also recalls going to the accused employee to tell them to stop their inappropriate conduct but she has not a single note of any of this. Now, I have a credibility issue I have to resolve. Who do I believe, the complainant employee or the manager? I then have to embark on asking a whole bunch of questions of potentially a whole bunch of people to learn about the complainant employee and the manager so that I can then step back at the end of the investigation and make a call as to whom, of the two, is the most believable. If, instead, that manager had notes, the situation is much different. I can then focus on the notes and go back to the complainant employee and ask them specific questions flowing from those notes. The manager’s credibility is enhanced by those notes. That is not to say that the credibility question is a slam-dunk in favor of the manager but it is certainly miles ahead from where it would have been without the notes.

When it comes to defending the actions that you, as a business took, regarding a human rights issue raised in your workplace, you never want to be left in a position where you have to reconstruct events or have to rely on memories that, for most people, are notoriously unreliable. The jigsaw puzzle type of analysis that has to be done when no notes exist leave an organization very vulnerable from a liability management perspective.

So, my advice is no matter how seemingly insignificant an employee comment or concern made to you about a potential human rights issue might appear at the time, write it down. Remember that age-old, but oh so still relevant saying — an ounce of prevention is worth a pound of cure.

Having a process AND following it key to meeting duty to accommodate

Donna Seale — Mon, 01 Jun 2009 05:00:00 +0000

In the course I teach for the Manitoba Human Rights Commission on “The Duty to Accommodate in the Workplace”, I spend a good chunk of time talking about how important it is for employers to implement a policy/process in their workplaces establishing how they will respond to requests for accommodation by employees. In particular, I talk about how critical it is for employers to be able to demonstrate, at the end of the day, that they have thoroughly examined and considered all of the possible ways that they can provide accommodation for an employee before they even think about jumping on the ’sorry we can’t do this’ band wagon. In addition, I stress how critical it is for employers to understand that their duty to accommodate is separate and distinct from any determinations made about the employee by a third party such as an insurance provider.

The fact is, if you do not have a process in place to reasonably assess accommodation requests, you will not successfully defend against a human rights complaint alleging a failure of the duty to accommodate. Same goes if you have a process in place and then choose, for whatever reason, not to follow it. Ditto if you choose to simply follow on the coat tails of a third party payer to decide how you should go about accommodating your employee. Unfortunately, there are still a lot of employers out there who are not getting these messages. Case in point, Jodoin v. City of Calgary, a November 2008 decision of the Human Rights Panel of Alberta.

The facts in brief

Mr. Jodoin began working for the City of Calgary in 1999. In September 2002, while he was working in the waste and recycling department as a driver/labourer, he injured his lower back. He subsequently made a successful claim for workers’ compensation benefits. From September 2002 to February 2003, Mr. Jodoin underwent a number of medical tests and was determined by his physician to be unfit for work during this time. In early February 2003, he underwent spinal decompression surgery. It wasn’t until June 2003 that Mr. Jodoin’s doctor recommended a gradual return-to-work. His return was not successful, though, as the job he was placed in was too strenuous. He went off work again to undergo further testing and obtain an accurate assessment of the impact of his disability.

In March 2004, it was determined that Mr. Jodoin’s condition was such that he would only be able to do sedentary work in the future. One of Mr. Jodoin’s specialists sent the City a list of Mr. Jodoin’s work restrictions and asked for the City to determine whether it could accommodate him in a permanently modified or other suitable alternate position.

The City began using the work restrictions identified by Mr. Jodoin’s doctor in order to attempt to find long term accommodation for him. In the meantime, the Worker’s Compensation Board, which was also involved, determined that it was not satisfied that Mr. Jodoin could only do sedentary work and, instead, came to the conclusion that he ought to be able to perform work that simply did not require heavy lifting. As a result of the WCB re-assessment of Mr. Jodoin’s work abilities, the City changed his restrictions from sedentary to medium-type work. The City sent out some e-mails to supervisors in Mr. Jodoin’s department and to human resources and return-to-work coordinators requesting accommodation for him. No potential jobs were uncovered.

WCB subsequently determined that Mr. Jodoin was not participating sufficiently in their job search program and, as a result, terminated his re-employment assistance benefits. The City then sent him a letter indicating that his benefits had been terminated by WCB for failing to cooperate in the rehabilitative process. The City further advised Mr. Jodoin that they were prepared to grant him an unpaid leave of absence for 30 days to rectify the situation with WCB. Mr. Jodoin was instructed to complete a leave of absence form and return it within 7 days. The City’s letter went on to say that if Mr. Jodoin failed to return the form or be reinstated by WCB his employment would be terminated.

Although Mr. Jodoin asserted that he cooperated to the best of his abilities with WCB and he wrote a letter to the City setting this out, he received no response. Mr. Jodoin did not sign the leave of absence form, believing that he was being “pushed out the door because he was sick.” The City subsequently wrote to Mr. Jodoin in July of 2004 advising him that they considered him to have “voluntarily resigned.”

Decision

The Alberta Human Rights Panel determined that Mr. Jodoin did have a physical disability as defined by the Alberta human rights legislation and that the City was well aware of his disability.

The City accepted that it had a duty to accommodate Mr. Jodoin but argued that it had provided that accommodation by making available to him four “safety nets” (Workers’ Compensation Benefits, Long Term Disability, Supplementation of Compensation under the collective agreement, and the possibility of a Leave of Absence). The Panel rejected this argument, pointing out that the availability of these types of benefits to employees did not necessarily bear on whether the employer had met its duty to accommodate.

Contrary to the employer’s contention, the Panel concluded that the City failed to make reasonable efforts to accommodate their employee for the following reasons:

Without consulting with Mr. Jodoin’s doctors, the City accepted the WCB’s assessment of Mr. Jodoin’s work abilities. The WCB assessment that Mr. Jodoin could perform work at a ‘medium level’ was diametrically opposed to the medical assessment that he could only perform sedentary work. The Panel found that by accepting the WCB assessment and modifying Mr. Jodoin’s work restrictions to reflect this acceptance, the City would have set him up for failure in any position that they might have found for him;
The City’s search for permanent modified work for Mr. Jodoin was “limited and ineffective” because:

- the City sent e-mails on two occasions requesting possible accommodations to Mr. Jodoin’s current department (Waste & Recycling), even though the City’s representative indicated she seriously doubted his ability to return to work in that department;
- with one exception, no record was kept of the positions that the City had actually considered and ultimately rejected as possible accommodations for Mr. Jodoin;
- the City’s policy and procedural guidelines indicated that union involvement was required anytime an accommodation might engage the collective agreement. Although the collective agreement was arguably engaged here, the union had never been approached by the employer. While the City argued that Mr. Jodoin indicated he had no use for the union, the Panel pointed out that this had little relevance to the employer’s responsibility to involve the union pursuant to its own process;
- the City’s procedural guidelines mandated an open communication process. However, the City was unable to show that it maintained regular contact or any semblance of open communication with Mr. Jodoin;
- the City’s guidelines provided two checklists to assist in the accommodation process but the City’s representative stated she followed the process “in her head” rather than either of the checklists as it would be too time consuming to complete the checklists on all of her files;
- all possible accommodations had not been pursued. The City could not show that their search for modified work for Mr. Jodoin had been extended to City departments outside of Mr. Jodoin’s union or corporate wide.
- Even though Mr. Jodoin was medically capable of working in a sedentary position, he was never given the option by the City of returning to work when WCB suspended his benefits. Instead, he was offered a Leave of Absence to enable him to appeal that decision. The Panel also pointed out that this “option” was given to Mr. Jodoin with no explanation and without advising him that they were not searching for a sedentary position for him;
- At no time did the City actually inform Mr. Jodoin that they could not find appropriate accommodation for his disability. Instead, they threatened to terminate him if his WCB benefits were not reinstated of if he did not sign the Leave of Absence form. The Panel stressed that because this was such a complicated employment situation, the City had a responsibility to meet with Mr. Jodoin and explain his options and any consequences associated with not signing the form, something it failed to do;
Finally, the Panel concluded that the CIty provided no evidence that it would have suffered undue hardship by continuing to employ Mr. Jodoin in a sedentary position.

Remedy

Finding that the City of Calgary failed to meet its duty to accommodate Mr. Jodoin, the Panel ordered that the City pay to him $5,000.00 in general damages and lost wages in the amount of $17,307.69 (less statutory deductions) plus interest.

What to take from this case:
- I’ll end this post the same way I started it — having a process and following it is absolutely essential if you, as an employer, hope to avoid liability in relation to the duty to accommodate;
- Follow that process in each and every instance you are faced with needing to accommodate the human rights-protected needs of your employees; and
- Complete your process. Do not stop looking for accommodation if WCB or another insurer or third party payer decides to terminate any benefits your employee might have been receiving relating to the accommodation need. An employer’s duty to accommodate operates independently and you’ll be the one on the hook, not the insurer, if you choose to short-circuit that policy without appropriate justification.

The danger of complacency: why regular harassment prevention training should be a no-brainer

Donna Seale — Tue, 19 May 2009 05:00:00 +0000

After letting my blog take a back seat to the flurry of investigation and training work that's been requested of me since mid-April, I'm finally ready to get back to writing! Truly thankful for the work but boy has it been busy!

For today's post I'm actually reflecting back on my recent investigations to discuss why it is so important for employers and their managers and supervisors to refrain from getting too comfortable with the way things appear to be going in their workplaces.

I was recently called into a medium-sized workplace to investigate complaints of harassment that had been filed against an employee. This workplace had in place a Respectful Workplace Policy that prohibited discrimination, human rights-based harassment and personal harassment. One of the questions I always ask when I interview employees and management involved either directly or indirectly in allegations of workplace harassment is whether they were aware of their company's policy and, if so, whether they had received training on the policy. If I'm speaking with someone who has supervisory responsibilities, I will also ask whether they had ever received training on the very specific responsibilities of management to prevent and appropriately react to complaints of harassment. And so, I asked these same questions in this most recent investigation. Here are the responses I received:

some of the employees had a vague idea that their workplace had a Respectful Workplace Policy but they had no idea what it said and had never received any training on the Policy. Moreover, they had no idea how to go about filing a complaint under the Policy or otherwise having any concerns they might have about harassment addressed by their workplace;
most of the managers knew about the Policy but the line managers had never received any training on the Policy. Most of the managers did not have a clear idea as to the process mandated by their company for raising and addressing complaints of harassment.
the key line manager (the one who had direct authority over the employee accused of harassment) only had a vague understanding of his legal responsibilities as a supervisor to respond to and effectively address concerns about potentially harassing behavior in the workplace. In response to the question of whether he had ever received any training specific to his legal responsibilities as a member of management, he indicated that training opportunities had been offered, on a voluntary basis, but he had never signed up to attend. He had never been required to take such training by his employer. More importantly from his perspective, though, was the fact that it never occurred to him that he needed such training until these complaints surfaced. There had never been a complaint of harassment filed in his workplace before and he said it was such a great place to work he never thought he had to worry about harassment ever occurring there.

I'd like to say these types of responses to my questions were rare, but, unfortunately, I can't. In fact, these answers are quite typical. I have, quite honestly, yet to come into a workplace to conduct an investigation and found that there exists a regular and consistent education program to train employees about their anti-harassment/anti-discrimination policies. Needless to say I think there's a pretty strong correlation between the absence of this type of training and the subsequent need to call me in to investigate formal complaints of harassment.

While a good many organizations I come into do have some basic training for their managers on their general human rights law obligations, these training courses are usually very rudimentary in nature. Certainly, very few managers I've spoken to during an investigation disclose to me that they have anything but an extremely general understanding of what they are legally responsible to do if they learn about an issue of harassment in their workplaces. And, often their understanding is limited to human rights-based harassment. Even fewer know about personal harassment or they get the two confused. And, even though these supervisors might have a general understanding of their legal obligation to prevent harassment in the workplace, they more often than not lack insight into how exactly they should go about putting those legal requirements into practical action.

So, why this pattern of a lack of training and education? Well, I think the response of the manager in my most recent investigation goes to the heart of this — why spend precious time, energy and money on learning how to prevent harassment in the workplace or on learning how to appropriately address it when it's easier just to believe it's never going to happen in the first place? Thinking harassment (or at least an allegation of harassment) is never going to occur in your workplace is, well, silly. I can point to oodles of requests for investigations and reams of legal decisions that suggest otherwise.

And, thinking those in your workplace will never need training to know how to bring concerns of harassment to the attention of management or how to deal with harassment when it arises is an approach that clearly illustrates what is meant by the phrase "penny-wise and pound foolish." The amount of time and money dedicated to an effective workplace harassment education and training program pales in comparison to what it will cost to hire someone external to do a proper investigation into a formal harassment complaint — or, even worse, to hire a lawyer to have to defend you in a legal proceeding before a human rights commission, an arbitrator or the courts. Complacency has no place here –really, honestly, truly. Training from my perspective is a 'no-brainer' and a key to employers avoiding liability in the area of workplace harassment (which, as regular readers of this blog will know 'liability avoidance' is my mantra). Here's what I think employers should be doing:

train all new employees (whether they are part-timers, full-timers, casual, summer, etc. — this means everyone who is new to your company) on what your workplace Anti-Harassment or Respectful Workplace Policy says. Detail how they can help prevent harassment in the workplace. Explain how they can bring concerns about harassment to the attention of someone in authority;
on a regular basis (ideally this should be annually), remind all employees about your Policy and what it requires. If your current employees haven't received training similar to that described above for new employees, make sure they get this training as well;
all managers and supervisors should be required to attend training which outlines their specific responsibilities to prevent and address harassment in the workplace. Refresher courses should be implemented at regular intervals;
upper level executives/business owners should also receive training specific to understanding their role in preventing and addressing harassment.

So, that's my two cents of advice to address a potential money pit of a problem.

But what about you? Does your workplace have regular harassment prevention training in place? What does that training cover? As always, I welcome your comments and/or feedback.

Clearing the air: criminal records, employment and the Manitoba Human Rights Code

Donna Seale — Wed, 25 Feb 2009 21:00:00 +0000

For some reason, I've run across a bunch of articles lately which make the bold statement that Manitoba's human rights legislation offers no protection to employees or job applicants charged with a criminal offence or who have a criminal record. Since that is not the case, I thought I'd try to 'clear the air.'

Whether a job applicant or an employee is given any protection under human rights legislation relating to criminal charges or convictions very much depends on where you live in Canada. In some jurisdictions across the country, and federally, the applicable human rights legislation contains a specific reference to persons who have been criminally charged and/or who have criminal records and provides them with varying protections. Here's a sampling:

The Ontario Human Rights Code contains the following provision:

Employment

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

Note: Ontario defines "record of offences" as referring to a Criminal Code conviction for which which a pardon has been granted or a conviction for a provincial offence.

The Yukon Human Rights Act has this section:

7. It is discrimination to treat any individual or group unfavourably on any of the following

grounds

……….

(i) criminal charges or criminal record…"

Here's what the British Columbia Human Rights Code says:

13 (1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

You'll note, if you read closely, that Ontario, BC and the Yukon all treat the issue of criminal charges and/or convictions in the area of employment very differently. In Ontario, you have to have a pardon before you receive protection. In BC, employment decisions cannot be made on the basis of a person's criminal conviction if the conviction is unrelated to the person's employment. In the Yukon, the protective reach extends to persons who either have criminal charges or records. It is very important that you be aware of the specifics of the legislation that applies to you as an employer.

So, what's the situation in Manitoba? In Manitoba's Code there is no specific reference to the fact that person's with criminal records or who have been charged criminally have any protections. To, perhaps, muddy the waters, the Code also contains a provision that says:

Criminal conduct excluded

9(4) For the purpose of dealing with any case of alleged discrimination under this Code, no characteristic referred to in subsection (2) shall be interpreted to extend to any conduct prohibited by the Criminal Code of Canada.

The reference in s.9(4) to "subsection (2)" refers to the specific characteristics that are protected under Manitoba's legislation and which I've discussed here before (eg. religion, age, sex, ancestry, disability, etc.). Ok, so based on s.9(4), I guess persons with criminal records aren't protected? Wrong.

Manitoba's Code contains four general definitions of discrimination. Three of those definitions link specifically to the protected characteristics. But, the fourth definition makes no reference to the protected characteristics at all. This is the "unspecified grounds" provision and here is what it says:

9(1) In this Code, "discrimination" means

(a) differential treatment of an individual on the basis of the individual's actual or presumed membership in or association with some class or group of persons, rather than on the basis of personal merit.

And this, my friends, is where people who believe they have been discriminated against on the basis of a criminal charge or conviction can attempt to seek redress under Manitoba's legislation. So, for example, if you, as an employer, choose not to hire someone simply because they have a criminal record, rather than assessing their ability to do the job on the basis of their personal merit, that decision could trigger a successful human rights complaint under the Manitoba Code.

Manitoba's Human Rights Commission has specifically addressed how they will approach the interpretation of section 9(1) in its Policy Relating to Criminal Records:

"Alleged discrimination in employment on the basis of a criminal charge or conviction may constitute the basis of a complaint under section 9(1)(a) of

The Human Rights Code.

Whether a charge or conviction has a bona fide relationship to the occupation or employment will depend upon all of the circumstances of the individual case, including, at least, the following:

(i) Does the behaviour that is the subject of the charge or conviction, if repeated, pose a significant threat to the employer’s ability to carry on its business safely and efficiently?;

(ii) What were the circumstances of the charge and the particulars of the offense involved: e.g. how old was the individual when the events in question occurred; were there extenuating circumstances?;

(iii) How much time has elapsed between the charge or conviction and the employment decisions? What has the individual done during that period of time? Has s/he shown any tendencies to repeat the kind of behaviour for which s/he was convicted? Has the individual shown a firm capacity to rehabilitate him/herself?;

(iv) Although not determinative in and of itself:

a. has a pardon been secured in relation to the offence?

b. have all the conditions been met in relation to an offence for which a conditional discharge was received?

(v) Having considered all of the above, was the severity of the particular action taken against the Complainant warranted by the nature and circumstances of the charge or conviction?

The onus is on the employer to establish that the existence of the criminal charge or conviction is a reasonable disqualification.

The Commission recognizes an individual’s fundamental right to be presumed innocent until proven guilty subject to only such reasonable limits as prescribed by law as can be demonstrably justified in a free and democratic society. Therefore, where the discrimination is based on a criminal charge, as opposed to a conviction, the evidentiary onus on the employer will be greater. In addition to the factors (i) to (v) above, the employer must clearly demonstrate that the risk to the public, co-workers or the employer’s business is so severe that the mere possibility of a conviction warrants the discriminatory employment decision."

So, if you are a Manitoba employer, and you happen to have read some of the articles I've been reading lately which say employers here are not impeded from refusing to employ someone if they have been criminal charged or convicted please ignore what you've read. Although perhaps not as obviously as the Yukon legislation, in the area of employment, the Manitoba Code does provide broad protections to persons who have either been convicted of a criminal offence or who are facing criminal charges.

How can a human rights complaint come to my attention?

Donna Seale — Wed, 06 Feb 2008 14:00:00 +0000

In any workplace, employers (and managers and supervisors) have to be alert to the fact that human rights-related complaints that employees may have will not necessarily be brought to their attention by way of a formal, written complaint. Some employees may go the formal route, but not all will. Many employees choose not to formally complain because they fear retaliation by those in a position of power in the workplace or their co-workers. Others hope that the problem will just go away. Others think it’s not worth saying anything because nothing will be done if they do. And there are even others who will think it is easier to just quit their job and look for another one that doesn’t come with the human rights problem attached.

So, aside from the employee who does choose to file a formal complaint under a workplace discrimination/harassment policy or selects to proceed with a grievance under a collective agreement, how else can a human rights complaint or issue come to the attention of the powers-that-be in a workplace? Some of those ways are:

Workplace observation:

you see with your own two eyes that something inappropriate is occurring in the workplace and know you need to act on it. So, for example, you notice that a racially-based joke is being circulated amongst employees (maybe you’ve even been sent the joke in a department-wide e-mail);
you notice that an employee’s morale or performance is mysteriously declining or their workplace behaviour is erratic or volatile. This employee’s behaviour, etc. may be connected to a human rights issue so you will need to talk with this employee to find out what might be the underlying cause of what you see happening. So, for example, you may well find that the employee’s performance is dropping rapidly due to the stress of dealing with a sexually harassing co-worker;

Indirect complaints:

an employee may identify a workplace problem that raises a human rights element in an indirect way. For example, in response to a question during a performance evaluation about why the employee has been performing so poorly in the past few months, an employee discloses that he is having trouble focusing on his work because two new co-workers are making fun of his disability (he is a stutterer). The employee in this situation is not formally complaining about discrimination but offering what he is encountering as an explanation for poor performance. That doesn’t mean you should ignore what is being said, though. It is in your best interests to address what the employee has now brought to your attention.

Reports by other managers or supervisors:

this one depends on who you are in the organization. You could be an upper level executive who is being advised of concerns by managers who report to you or you could be a human resource specialist who is called by a supervisor for advice on a workplace concern. Either way, it must be remembered that managers and supervisors are the eyes and ears of your organization. They are the ones most in touch with the employees and will have the best sense of whether there are potential human rights violations occurring in the workplace. Once a manager or supervisor becomes aware of a potential human rights issue, the employer becomes responsible for taking action to address it.

External concerns raised:

a human rights-related concern can be brought to a workplace’s attention from a customer, vendor, client, etc. Keep in mind that your obligation to appropriately address the concern does not change just because the source of the concern comes from outside your organization. Do not dismiss the concern out-of-hand and do your best not to become defensive. The wisest approach would be to view this as an opportunity to address a potential problem in-house before it becomes a legal liability and you have to address it external to your organization.

Anonymous complaints:

someone in your workplace could choose to complain without identifying themselves by leaving an anonymous note or an anonymous phone message. Just because a complaint comes to your attention anonymously does not mean you should ignore it. Remember the source of the information does not matter; it is the content of the information you are provided that does. Ask yourself whether you have been given sufficient information to trigger a legal duty to do something about it.

From employees who are leaving:

on departing the workplace, in an exit interview, for example, an employee could indicate she is leaving because her boss has been sexually harassing her. While the employee with the concern may be leaving, the possible source of the concern remains (the boss). You should take action to determine if there is any validity to what you have now become aware of. You owe it to the departing employee and the employees who remain under this boss’ authority.

By staying alert to the fact that human rights complaints can come to your attention in a whole host of ways, your organization will be better equipped to address problems early on before they infect the workplace.

Holiday parties and human rights? Oh my!

Donna Seale — Wed, 21 Nov 2007 14:00:00 +0000

Holidays, parties and human rights……just doesn’t roll off your tongue, does it? Well, not that I want to rain on anyone’s parade, but, work parties can, in fact, engage human rights issues that employers and employees alike need to be aware of. Given that we are heading into the December holiday season and workplaces will soon be preparing for various types of holiday parties, I thought it was timely to touch upon this topic.

On that note, I came across a good post by Xpert HR on "Top 10 tips for a successful work Christmas party" and a more ominous Canadian news article on "Office party dangers". The common threads running through both pieces, along with my own comments, are as follows:

Workplace parties are "related to employment":

Remember that the boundaries of the work environment are not determined by time or location where workplace human rights protections are concerned. So, even though your holiday party may be outside of the office and beyond working hours, the party is still sufficiently related to employment to trigger employer liability for conduct at the party which is in violation of human rights legislation.

Have a "party policy":

It’s a good idea to either have a separate policy relating to work parties or, at the very least, remind your employees that your everyday discrimination and harassment policy (which I know you all have and live by) is still in operation at all times during the festivities [note here that the Xpert HR post is based on the law in the UK which is why it only mentions prohibitions against sexual harassment, and harassment on the basis of age, religion and sexual orientation. Canadian law prohibits these forms of harassing behaviours as well but goes beyond them to include conduct such as racial harassment and harassment on the basis of disability -- refer to the human rights legislation in your jurisdiction to ensure you have covered what you need to in your policy];

Monitor employee behaviour:

While there is no reason preventing everyone, including management, from enjoying the party, it is advisable to delegate certain members of the management team to keep watch on the goings-on at the party to ensure inappropriate employee conduct is avoided as much as possible. Intervene at the first signs of any trouble. Managers who are selected for this monitoring role should be trained on what discrimination and harassment is, how to identify it, and steps that should be taken if they become aware of behaviour that could constitute discrimination or harassment. They should also know not to engage in this kind of behaviour themselves;

Keep an eye on third parties:

Employers in Canada are legally obligated to protect their employees from harassment by third parties to the workplace (such as clients, customers, etc.). As in #2, members of management can be chosen to be on the look-out for any problematic third party behaviour. If management becomes aware of such behaviour, they should intervene and take all reasonable steps to remedy the situation immediately;

Strive for inclusivity:

Remember that the time of day that you set for the start of your party or the day of week you decide to hold it on can impact the ability of employees to attend based on characteristics such as family status or religion. Selections of food and drink should bear in mind the diverse religious beliefs of employees in the Canadian workplace. Invitations to the party that are extended to your employees’ partners should reflect the existence of both opposite-sex and same-sex relationships. The best advice? Seek the input of all of your employees so that you create the most inclusive party atmosphere possible.

Happy holidays!

New study shows how US companies are addressing an aging workforce

Donna Seale — Fri, 16 Nov 2007 14:32:47 +0000

Aging Workforce News has an interesting post highlighting the results of a just-released study exploring what four US companies are doing to address an aging workforce. The study, conducted on behalf of the Metlife Mature Market Institute, a provider of insurance and financial services in the US, provides insights into and ideas as to how to respond to the labour force challenges employers will be facing in the not-too-distant future. It’s a useful read.

Assertive women at greater risk of being sexually harassed in the workplace

Donna Seale — Mon, 05 Nov 2007 14:00:00 +0000

Who do you think is more likely to be sexually harassed in the workplace?

a. a woman who displays stereotypically female characteristics such as deference and warmth; or

b. a woman who displays stereotypically male characteristics like assertiveness and dominance?

If you guessed "b" you would be right, at least according to a study discussed in the media this past week. The study found that independent, assertive women were more likely to experience sexual harassment in the workplace than women who were generally more deferential. This was particularly so in male-dominated workplaces. Why is this occurring? Well, according to the study, women who assert themselves in the workplace and demonstrate leadership qualities are threatening to some men’s "sense of security and status" leading to these men feeling the need to reassert their dominance over such women. The reassertion of dominance manifests itself in sexual harassment including sexual comments, unwanted sexual attention and sexual coercion. In effect, then, sexual harassment is the hostile response of some men toward those women who assert themselves in the workplace.

The results of this study are important because they dispel the notion that women who are more demure or less likely to speak out in the workplace are the ones who are the more likely targets of sexual harassment. In addition, the study highlights the true motivators behind sexual harassment. Finally, the results also underscores the need for employers to ensure all of their female employees, from the entry level positions to the very upper ranks, are adequately protected against sexual harassment.

'Thinking Outside the Box' a useful reference tool for accommodating disability in the workplace

Donna Seale — Fri, 05 Oct 2007 02:18:32 +0000

I just came across a new website that I think will be of interest to anyone who is looking for information on accommodating people with disabilities in the workplace. It is called "Thinking Outside the Box" ("TOTB") and was just launched about a month ago by Strategic Employment Solutions, an Ontario-based organization that assists persons with disabilities find work and helps employers recruit persons with disabilities. The TOTB website is:

"designed for employers, job seekers, employees, union representatives and anyone who supports the employment of persons with disabilities."

The information provided on the website is general enough that anyone across Canada interested in the subject matter can use it. The site discusses the law on accommodation in the workplace, contains some useful checklists and sample policies and provides a wide range of additional resources to help employers hire and accommodate persons with disabilities in the workplace. I’ve added the site to my blog’s list of "helpful resources."

Click here for a news release announcing TOTB’s launch.