Employers have several legal obligations and, as explained in Workplace Policies 101 by Jenson Leung, having a robust set of polices is important to meet those obligations.

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Understanding how certain key terms are defined in those policies, and how the terms are interpreted, will help to ensure that you and your employees know what conduct is not acceptable in the workplace.

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There are several sources of law and policy that define harassment and bullying and discrimination.

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Bullying and Harassment

WorkSafeBC policy defines harassment and bullying as

any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

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(reference Policy Item P2-21-2 Employer Duties - Workplace Bullying and Harassment)

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The Workers’ Compensation Appeal Tribunal (WCAT), through its consideration of appealed claims for injury compensation, has said that bullying and harassment is interpersonal conflict which, in order to constitute a significant workplace stressor, must contain an element of abusive or threatening behaviour (Decision # 2014-02791).

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Discrimination and Sexual Harassment

If harassment in the workplace involves conduct that targets personal characteristics like race, ancestry, disability, Indigenous identity, sex, gender expression and identity and/or sexual orientation then the BC Human Rights Code offers protection to employees.  The BC Human Rights Tribunal allows employees to make complaints against the individual who committed the discrimination and/or sexual harassment.

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Examples of discrimination and harassment in the workplace, as decided by BC Human Rights Tribunal, include:

• Comments and unfounded allegations that are based on stereotypes (2024BCHRT 204, 2023BCHRT 137).
• Treating someone differently because of a personal characteristic (2022BCHRT 98, 2014BCHRT 150).
• Disparaging comments based on false assumptions (2022BCHRT 68, 2011 BCHRT 310).
• Making racially charged comments, slurs and/or jokes (2022BCHRT 129, 2018BCHRT 238, 2007 BCHRT 197).
• Racially profiling someone in the workplace (2008BCHRT 293).
• Touching in sexual way, showing or displaying porn, repeatedly asking someone for a date, imposing adverse consequence because someone said no to sexual advances (2020BCHRT 138, 2019BCHRT 97).

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Are employers liable for an employee’s bullying and harassment and discrimination in the workplace?

If an employee’s misconduct was known to the employer, and the employer failed to discipline it, or otherwise condone the employee’s misconduct, an employer can be found liable for the actions of the employee.  This is known as vicarious liability and Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 is the leading case.

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In 2024, the BC Human Rights Tribunal decided a case that found an employer was not vicariously liable because they properly investigated the employee’s misconduct and acted appropriately. Based on that decision, the following recommendations will minimize findings of vicarious liability:

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Have workplace policies that are clear that bullying, harassment, and discrimination in the workplace is not tolerated, and the policies are:

• Updated regularly.
• Accompanied by mandatory training and/or regular reminders about the policies.
• Warnings about the consequences of policy breaches, including potential discipline for breaches of the policy.
• Have a misconduct complaint investigation process that:
  • Communicates confidentiality, quickly and clearly to the parties.
  • Interviews all the parties including the complainant, the offending employee (the respondent), and relevant witnesses.
• Ensures that employee mental health is taken care by:
  • Offering an employee assistance program.
  • Acknowledging the employer’s duty to accommodate. (2024 BCHRT 119)

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By considering and implementing workplace policies, employers can easily meet their legal obligations and minimize the risk associated with employee misconduct.

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To learn more about KSW Lawyers, how we help clients, and how I can assist you with your workplace investigation, workplace policies or human rights matter, call (604) 591-7321 or visit kswlawyers.ca or email to [email protected]

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

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