Workplace Wire

The Human Rights Tribunal of Ontario this week released its decision in Taylor-Baptiste v. Ontario Public Service Employees Union, which rejected a female manager’s claim that sexist comments made about her on a union blog violated her equality rights under the Human Rights Code (Code). Union rights to expression and association under the Canadian Charter of Rights and Freedoms (Charter) were key to this outcome.

As the Tribunal’s decision reveals, in the fall of 2008, as collective bargaining between OPSEU members and the Province was underway, an OPSEU local president started a blog about issues in the workplace. In that blog, which was publicly accessible on the Internet, posts were made which intermingled legitimate union speech with inappropriate sexist comments about the complainant.

After recognizing that “postings on blogs and other electronic media may be part of or an extension of the workplace and that the Code may apply to them”, the Tribunal made a number of findings  about the sexist remarks and related aggravating factors which heightened their seriousness.

According to the Tribunal:

• The union president drew upon frequently used sexist stereotypes about women in positions of power “sleeping their way to the top” suggesting that she had obtained her position through sex.
• Similarly, he drew upon the stereotype that women get ahead through their relationships with more competent “boyfriends”.
• The president approved the posting of an anonymous comment in support of the sexist blog, which suggested that, because the manager had married and taken the family name of an OPSEU member, she should adopt his values, including those of support for trade unionism, or disassociate herself from them by changing her name. The Tribunal found that suggestion targeted her as a woman because it was traditionally women who were expected to change their names upon marriage.
• The president’s blog post was serious because he was an active participant on behalf of the union in a process of restoration of a workplace that had been poisoned through racist hate mail and other events.
• When the offensive nature of the blog was pointed out to the union president by management, together with the fact that it may constitute discrimination or harassment contrary to the employer’s policy, he responded by “belittling the concerns, attacking management, and suggesting that his actions were justified because of alleged mistreatment of the union and its membership by the employer”.

However, having earlier noted the “union’s core Charter rights to express themselves on matters of concern in the union-management relationship”, the Tribunal determined that these rights had to be balanced against the manager’s right to freedom from discrimination with respect to employment:

“On the other hand, these were comments made by a local union president on a union blog, explicitly in the context of this role rather than his role as a fellow employee. They dealt with union-management relations. The applicant is a manager, who has the power in the workplace that comes with that role. Viewed objectively, the posts expressed to the union members Mr. Dvorak’s and the anonymous poster’s opinions on how the applicant had handled the work refusal by union members, her dealing with the health and safety issues raised, and the process for filling management positions. I accept Mr. Dvorak’s evidence that he had genuine concerns about nepotism and this was what motivated this comment. Whether or not these underlying concerns had any merit and despite the sexist stereotypes used to express them, they fundamentally relate to the union’s and Mr. Dvorak’s role as representative of the members of the bargaining unit in their relationship with the employer. They were directed at the union membership and related to the union-management relationship. They are, in my view, analogous to comments on labour-management issues made at a union meeting or a union newsletter. Comments on such issues are at the core of the constitutional protections of freedom of association and expression and the union’s right to operate independently of the employer.”

The Tribunal acknowledged the complainant’s testimony to the effect that “she was extremely distressed by the bringing of her personal life into the workplace and felt that people would think she had slept her way to her job” and further that “various people mentioned to her that they had read about her on the blog, and that when she went to a training session, she felt that many people looked at her when she stated her name because they had read about her on the blog.”

However, the Tribunal further downplayed the sexist comments stating that the complainant “did not provide evidence of any comments or other actions in the workplace that resulted from the fact that sexist language was used. The principal effects on her as expressed in her testimony, however, were about the bringing of her personal life into the workplace, not the sexist nature of those comments”.

Ultimately, the Tribunal concluded that there was no discrimination “with respect to employment” in this case. The Union President’s sexist comments were excused because, they were “made on issues of union-management concern” and “they were not gratuitous attacks unrelated to union business”.

Despite the complainant’s testimony about the impact of the sexist comments on her, the Tribunal concluded that there “were no Code-based reverberations in the workplace and the applicant’s principal concern was about the bringing of her personal life into the workplace”.

The Tribunal also noted that the complainant, “as a manager, is a person with relative power in the workplace relationship with employees”.

“Most important”, for the Tribunal, “union comments on workplace issues are constitutionally protected expression of opinion and exercise of freedom of association”.

The Tribunal concluded with some cold comfort and a caution that a different result could obtain in another case:

“Of course, this conclusion does not mean that I have found that the blog posts in question were acceptable, nor does it negate the hurt they caused Ms. Taylor-Baptiste. On the contrary, the wording of these posts was inappropriate and, in my view, harmful to good labour relations.

I also emphasize that this decision is not intended to preclude arguments that blog posts in other contexts could fall under s. 5(1), or that expressions of union opinion could constitute discrimination in other circumstances. Most significant to my decision in this case are that the postings were tied to communication to the membership on issues of labour-management relations and the absence of Code-related effects in the workplace.”

It is hard to disagree with the notion that factual context is important to the assessment of whether discrimination exists in the workplace. However, the reasoning in this decision is difficult to accept, in a number of respects.

To begin, discrimination cannot generally be justified under the veneer of otherwise lawful conduct. As the Tribunal recently noted in Hill v. Spectrum Telecom Group Ltd., it is “well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason”.

Thus, the Tribunal has found discrimination when an employer otherwise had good grounds for treating an individual in a certain way, but the treatment was tainted by discriminatory comments.

For example, in Correia v. York Catholic District School Board, the Tribunal found that an employer had valid grounds for not hiring the applicant but still found discrimination in the hiring process. This finding appears to have been heavily influenced by comments made by a personal respondent, notably her comment to effect that the applicant had played the “race card” in the past.

A one-off comment like this has led to a finding of discrimination in other cases before the Tribunal as well, such as Abdallah v. Thames Valley District School Board. In that case, the evidence suggested that the complainant was caught cheating on a test and given a failing grade, which led to his aggressively confronting his accuser, a personal respondent in the case. This aggressive confrontation led the respondent to make the comment “I am sick and tired of immigrants crying discrimination when they don’t get what they want.”

The Tribunal in that case accepted that the respondent felt attacked and provoked and was entitled to defend herself. However the stereotypical comment could not be justified on that basis. As the Tribunal stated in that case: “… I find that, in defending herself, it was entirely unnecessary and wholly inappropriate to express her frustration in a manner that insults newcomers, people who are not born in Canada and others who may identify themselves as immigrants.”

The Tribunal thus holds employer representatives to very high standards of civility and stoicism. It does not hesitate to stigmatize them as discriminators when an otherwise justified refusal to hire, etc. is tainted by discriminatory comments. Moreover, the Tribunal holds respondents – employers and service providers – to these high standards even when they are confronted with adversarial and tense situations. The Tribunal requires respondents to express their views in ways which are not tainted with discriminatory comments, especially when such a manner of expression is open to a respondent.

Yet in the case at hand, the Tribunal appears to have relaxed those standards for a union president, invoking constitutionally protected union speech to deny a remedy to the manager who was subjected to the sexist comments.

To me, it seems counterintuitive to suggest that constitutionally protected rights may be exercised in a way that is contrary to human rights norms, indeed contrary to the equality principles enshrined in section 15 of the Charter, especially when there is no apparent need to exercise these rights in this way.

Apart from unions and their members being subject to the provisions of the Code in the workplace, there are other expressions of public policy supporting the view that union rights should not be exercised in a discriminatory way. Employees have rights to form unions and negotiate collective agreements. However, under s. 15 of the Labour Relations Act, 1995 (LRA) the OLRB is prohibited from certifying a trade union if it discriminates against any person because of any ground of discrimination prohibited by the Code or the Charter. Section 54 of the LRA likewise provides that collective agreements must not discriminate against any person if the discrimination is contrary to the Code or the Charter. And of course, under s. 74 of the LRA unions cannot represent their members in a way which is discriminatory.

Let’s hold these thoughts for a moment and go south of the border. What happens there is of course not binding in Ontario; however, a global perspective as to what is permissible in free and democratic societies is appropriate when considering Charter values. In the United States, s. 7 of the National Labor Relations Act provides that employees have the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”. This right has been interpreted very broadly by the National Labor Relations Board’s Acting General Counsel to protect employee and union speech in social media. However, in the Acting General Counsel’s most recent guidance, issued in May 2012, the provisions of an employer’s social media policy under which “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers” was found to be lawful and not contrary to s. 7 of the NLRA.

Coming back to the Tribunal’s decision, as I read it, a question that came to my mind was: why could the union not have expressed its legitimate views without injecting sexist comments into them? That is what the Tribunal required in the Abdallah case and it is difficult to comprehend how the union president in the case under study could not have made his points just as forcefully without having to taint them with discriminatory invective.

The Tribunal’s remarks about the position of power the manager held and there being “no Code-based reverberations in the workplace” are also difficult to accept. The Tribunal’s own findings were to the effect that the male union president was able, through his publically posted sexist comments, to affect the target of his attacks on an emotional and self-esteem level despite her formally holding a position higher in the employer’s organization. The Tribunal’s own findings were that the victim of the sexist comments “explained that she was extremely distressed by the bringing of her personal life into the workplace and felt that people would think she had slept her way to her job.”

With a finding like that, it is hard to grasp that the Tribunal could then go on to find that there was an “absence of Code-related effects in the workplace”. It is not clear how it could be assumed that manager could check the distress she described at the door to her workplace as she entered it each day, even if other people in the workplace may not have verbally reinforced the experience of the sexist comments to her.

The Tribunal’s justifying the sexist comments because they were “made on issues of union-management concern” and its statement that “they were not gratuitous attacks unrelated to union business” are particularly troublesome. To begin, it is self-evident that the sexist comments were gratuitous. The union could have made its points without them. Moreover, it is unthinkable that the Tribunal would ever allow an employer to make sexist comments like this on the basis that they were tied to the business concerns of the employer, employer rights of free speech or employer rights of association (yes, those exist under the LRA).

In closing, the reasons in this decision give cause for concern on a number of levels. Despite the cautionary words at the end of the Tribunal’s decision, the door is now clearly open to justify the discriminatory actions of unionized employees under the guise of constitutionally protected union rights. How wide that door may be open is unclear and to be examined on a case by case basis, by the Tribunal applying a multi-factored, highly fact-dependent, test. And, as this case itself suggests, there appears to be two weights and two measures in the Tribunal’s case law dealing with discriminatory comments. If you are a non-management employee you stand to be protected against discriminatory comments. On the other hand, if you are management, you may be expected to tolerate sexist, racist, etc. comments that are interwoven with otherwise valid union expression. Let’s hope that in future decisions the Tribunal makes a point of reassuring the management community that this is not the case.