Workplace Harassment and Discrimination
Workplace Harassment
Legal Framework
In Saskatchewan, every worker has the right to a healthy and safe work environment. This includes an environment safe from harassment. It is not just an employer’s employees who have a right to a harassment-free work environment. Rather, a variety of workers at a workplace are entitled to this protection including contractors, secondary or post-secondary students performing work or being trained by an employer, and volunteers. In other words, the right to a healthy and safe work environment extends broadly across a workplace.
The prevention of workplace harassment is governed by provincial laws. In Saskatchewan, the main legal framework governing workplace harassment is found in The Saskatchewan Employment Act, the corresponding Occupational Health & Safety Regulations, and The Saskatchewan Human Rights Code, 2018.
Purpose
The purpose of the harassment provisions under The Saskatchewan Employment Act and its regulations is to provide workers with a mechanism to prevent harassment (through a workplace harassment policy) and to stop harassment when it does occur. The Saskatchewan Employment Act does not provide a mechanism for compensation to workers who have been harassed. The Saskatchewan Human Rights Code, 2018 has provisions respecting some compensation for workplace harassment when such harassment is based on prohibited grounds.
Definitions
The Saskatchewan Employment Act outlines the definition of what constitutes harassment in the workplace. Under that legislation, harassment is defined as any inappropriate conduct, comment, display, action or gesture by a person towards a worker that either:
1. is based on a prohibited ground under The Saskatchewan Human Rights Code, 2018 (for example, a person’s age, disability, religion, sex, colour, etc) or physical size or weight; or
2. adversely affects a worker’s psychological or physical well-being and that the person knows or ought reasonably to know would cause the worker to be humiliated or intimidated;
and (in addition to either points 1 or 2 above) that constitutes a threat to the health or safety of the worker.
In order to constitute harassment for point 2 (above), the harassment must either be (a) repeated conduct, comments, displays, actions or gestures or (b) a single, serious occurrence of conduct, or a single serious comment, display, action or gesture, that has a lasting, harmful effect on the worker. In other words, harassing behaviour is not necessarily behaviour that occurs over a prolonged period of time, but could include a single serious event.
The protections in the legislation regarding harassment at work also include protection from sexual harassment at work. The Saskatchewan Employment Act refers to sexual harassment as any conduct, comment, display, action or gesture by a person towards a worker that is of a sexual nature and which the person knows or ought reasonably to know is unwelcome.
In addition to understanding the definition of harassment, it is important to note what does not constitute harassment. The Saskatchewan Employment Act states that harassment does not include any reasonable action that is taken by an employer (or an employer’s manager or supervisor) relating to the management and direction of an employer’s workers or the place of employment. In other words, the employer and its managers have the right to govern the workplace, even if a worker does not agree or like the direction given to them, provided that such governance does not stray into the definitions of harassment under the legislation.
Employer Responsibilities
All employers in Saskatchewan must ensure (as far as is reasonably practicable), that its workers are not exposed to harassment with respect to any matter or circumstance arising out of that worker’s employment. An employer’s duty is not necessarily limited to the onsite workplace location. Rather, an employer’s duty can extend to incidents outside the workplace or after-hours work that are connected to the employment – for example, a work social function or an offsite location where a worker is required to attend for purposes of the employer’s business.
As part of their duties to ensure that its workers are not exposed to harassment, Saskatchewan employers are required to have a written harassment policy in their workplace. The Occupational Health and Safety Regulations outline the specific items that must be included in a written harassment policy, including an explanation of how employees can report harassment to an employer. Employers must strictly comply with the requirements in The Occupational Health and Safety Regulations as to the specific items that must be included in their policies. If an employer has an occupational health & safety committee (in workplaces with 10 or more workers), an employer also has a duty to consult with the occupational health & safety committee in the development of such a policy.
The Saskatchewan Employment Act also requires employers to ensure that its workers are trained in all matters necessary to protect their health, safety, and welfare. Such an obligation necessarily extends to training on workplace harassment.
Workers’ Responsibilities
It is important to note that the legislation does not impose obligations solely on employers to keep the workplace safe from harassment. The legislation also imposes responsibilities on workers.
Workers must refrain from causing or participating in the harassment of another worker. Workers should also be mindful that harassment does not require intent. As such, workers must take reasonable care to protect not only the health and safety of themselves, but the health and safety of others who might be affected by a worker’s actions or omissions. As such, workers should be mindful to ensure that they are not inadvertently engaging in harassing conduct towards other workers (including supervisors).
Further, workers must co-operate with any person exercising a duty under The Saskatchewan Employment Act. For example, if an employer is conducting a harassment investigation in the workplace, a worker must cooperate with that investigation.
Supervisors must ensure that workers under their direction are not exposed to harassment and as such, should be alert to any signs of harassment amongst workers. If there are signs of harassment, a supervisor must act appropriately, including reporting the behaviour to the employer under the harassment policy if informal action does not rectify the situation.
Starting a Complaint Under a Harassment Policy
If an employee believes they are experiencing harassment, an employee must first report the complaint to the employer under the workplace harassment policy. Review your organization’s policy first for details on how to report harassment and the process that the employer follows to investigate such harassment.
It is a good idea for employers to have different options in its policy regarding the process of handling a harassment complaint. These options can range from informal procedures where a worker may simply be looking for assistance about how to handle the behaviour of another person to formal harassment complaints where the employer will undertake a more formal investigation to determine if the complaint is substantiated. Under The Saskatchewan Employment Act, the employer will keep the names of the complainant, alleged harasser, and circumstances of the complaint confidential unless disclosure is required for the purposes of investigating the complaint, taking corrective action with respect to the complaint, or if it is required by law.
Outcomes
At the end of a formal workplace investigation into harassment, a complaint of harassment will either be substantiated or unsubstantiated. The Occupational Health and Safety Regulations require an employer’s harassment policy to set out the process an employer will follow for informing the parties of the outcome.
For complaints that are substantiated, employers are also required to make a commitment to take corrective action respecting any person under the employer’s direction who subjects a worker to harassment.
For complaints that are unsubstantiated, the complaint should be dismissed. An employer should assume a harassment complaint was made with good faith. However, if there is persuasive evidence that a complaint has been made in bad faith, an employer should take steps to discipline the worker who made the bad-faith complaint.
Options for Filing a Complaint Externally
An employee has other avenues for recourse if they feel they are being harassed at work and feel that the employer has failed to take reasonable steps to address the harassment. Initially, the best way to deal with harassment is often through an employer’s workplace policy. However, the existence of a harassment policy at the workplace does not prevent an employee from seeking out other avenues of assistance. This includes an employee’s right to file a complaint with the Saskatchewan Human Rights Commission for discriminatory practices. It also includes the right to talk to an occupational health and safety officer to help resolve a complaint. A worker can contact the Occupational Health and Safety branch at the Ministry of Labour Relations and Workplace Safety if they wish to speak to an occupational health and safety officer: https://www.saskatchewan.ca/business/safety-in-the-workplace/hazards-and-prevention/bullying-and-harassment-in-the-workplace.
An employee can also contact their union representative (in-scope) or legal counsel (out-of-scope) to help assist them with workplace harassment issues and discuss options for resolution.
Need Assistance?
Our office is experienced with claims of harassment and can assist employees or employers with navigating complaints of workplace harassment.
For more information on harassment, also see the Government of Saskatchewan’s website: https://www.saskatchewan.ca/business/safety-in-the-workplace/hazards-and-prevention/bullying-and-harassment-in-the-workplace
Workplace Discrimination
Legal Framework
The Saskatchewan Human Rights Code, 2018 (the “Code”) is the legislative framework that addresses discrimination in Saskatchewan workplaces. The Code protects against discrimination based on a number of prohibited grounds. These prohibited grounds are: religion, creed, marital status, family status, sex, sexual orientation, disability, age (any age of 18 or more), colour, ancestry, nationality, place of origin, race or perceived race, receipt of public assistance, and gender identity.
Part of the protections under the Code include protection from discrimination in the workplace. No employer can refuse to employ, refuse to continue to employ or otherwise discriminate against a person (or class of persons) with respect to employment (or a term or condition of employment), on the basis of a prohibited ground. For example, an employer cannot refuse to continue to employ a person based on the fact that the person becomes disabled. As another example, an employer cannot pay an employee less than another employee (for the same work and experience) on the basis of an employee's gender.
The legislation also prohibits employees from discriminating against other employees at work.
Limitations on Discrimination Provisions
There are limitations on the provisions of the Code with respect to workplace discrimination. One of the most common issues that arises under these limitations is whether a job requirement is a bona fide occupational requirement. The Code specifically states that discrimination does not apply based on sex, disability or age, if sex, ability, or age is a reasonable and bona fide occupational qualification and requirement for the position or employment. This means that sometimes there are good faith reasons to exclude a person from a job because of a standard that is needed for an employee to be able to perform a job. For example, Human Rights Commissions refer to sight requirements for operating motor vehicles or age requirements for employees serving or selling alcohol.
The Supreme Court of Canada has said that in order for a job requirement to be classified as a bona fide occupational requirement, the requirement must be:
1) Rationally connected to the performance of a job;
2) Established in good faith; and
3) Reasonably necessary to the accomplishment of the legitimate work-related purpose.
As part of the test, an employer must consider whether it can accommodate an employee. An employer is required to make accommodations to the point of undue hardship. If such an accommodation can be made without undue hardship, then the employer must follow through with such an accommodation. If an accommodation would cause an employer to face undue hardship, then the accommodation is not required and the bona fide occupational qualification will stand.
Undue hardship does not require an employer to change the working conditions in a fundamental way, create an entirely different position for an employee, or otherwise take steps that are unreasonable or impractical. It does not require employers to make accommodations that may impose an undue or unreasonable burden. But employers must anticipate some hardship and must not be inflexible or unwilling to explore creative options for accommodation.
Employee Participation in the Accommodation Process
Employees who may require an accommodation must inform their employer of such need and be prepared to provide any supporting information for the request (for example, medical documentation). The accommodation process is a two-way process, so the employee must actively participate. If the employee is represented by a union, the employer should also include the union in the process (with the employee’s consent, unless the employee specifically states otherwise). An employee should not turn down an employer’s reasonable proposal for accommodation. An employer is not obligated to provide a perfect accommodation or the exact accommodation that an employee requests. If accommodation is not possible in the employee’s current role but there is an available role where the employee can perform different work, the employee must accept the pay and benefits in that role.
Filing a Complaint
If matters cannot be resolved with your employer, you can file a complaint with the Saskatchewan Human Rights Commission. Note that a complaint must be made to the Commission within 1 year after the alleged incident of discrimination, subject to exceptional circumstances.
The Saskatchewan Human Rights Commission contains detailed information on its page about:
- If the Commission is the right place to make a complaint (https://saskhrc.ca/filing-a-complaint/am-i-in-the-right-place/); and
- How to File a Complaint: https://saskhrc.ca/filing-a-complaint/how-to-file-a-complaint
Need Assistance?
Our office is experienced with claims of workplace discrimination. Please contact us if you would like advice on or assistance with a complaint to The Saskatchewan Human Rights Commission.
For more information, also see The Saskatchewan Human Rights Commission’s website: https://saskhrc.ca/
The above information is provided for information purposes only and does not constitute legal advice.