Navigating Change: The Evolving Landscape of Safe and Respectful Workplaces

By Jeff Palamar and Jocelyn Shymko

Change is a constant, and the pace of change is constantly accelerating. 

Change can range anywhere from inescapable and conspicuous to subtle and nuanced.

Culture changes far more quickly than the law. If and when the law changes, it typically follows cultural change. 

Cultural change can lead to abrupt changes to the law. More frequently however its impact is shown over time, as new perspectives incrementally appear after the examination and application of the law through a new lens of the changing culture.

Workplace culture and how legally we are required to treat one another (and are entitled to be treated by others) have long been subject to ongoing change. In recent times these changes perhaps have been more nuanced, yet they remain every bit as profound in impact and so vital to understand and incorporate into the modern workplace.

Broadly stated, employers must provide a safe and respectful workplace and take all reasonable steps to deal with and address acts or omissions that fail to meet acceptable standards. On the other side of the coin, employees have to fulfill their part of the bargain and likewise do what reasonably can be done with the goal of a safe and respectful workplace in mind. 

Employers don’t have absolute control over what happens in the workplace but certainly are the dominant power, and with that that power comes primary responsibility over that workplace. Employers have to address what they actually are aware of and what they ought reasonably to be aware of. The buck stops with them and a certain reasonable degree of diligence and attention to detail is necessary.

Employers are required to know the current state of the law and apply it in their workplaces and must follow today’s requirements, and when those change, they too must adapt and change. Simply because something was acceptable (or at least not expressly unacceptable yesterday) does not alone make it acceptable today.

At the root of some of this change is a desire (or even a need) for inclusivity, but with boundaries. There is an increasing emphasis on the right of self-expression, individuality, and acceptance. Each of us has the right to be whomever we are and believe what we do and have that respected in the sense of being accepted or at the least tolerated and not held against us. 

This necessary respect for everyone else can be challenging however as ultimately we do interact, and where we are and what we do may well impact those we work alongside. This does not mean escalating and irreconcilable conflict in the workplace but just increasing challenges to be navigated and refereed by employers. 

This cultural shift has prompted a need to look at challenges arising from issues such as language and gender. Technology further complicates things as it ever increasingly integrates the workplace with our personal lives.

Everything is the same yet different. Harassment and discrimination continue to exist but include different acts or omissions than in the past. What was unacceptable back then still is unacceptable now, but due to cultural changes we have to redefine and expand what the word “unacceptable” includes.

We quite intentionally focus on that redefined and expanded meaning here, acknowledging the type of harassment and discrimination that historically has occurred, sadly continues. 

Navigating the ignorant yet still inappropriate

Comments or compliments possibly offered in a well-intended manner are not always harmless and acceptable.

Many will remember the television sitcom “The Office,” with its main character Michael Scott. Michael was a buffoon, and notorious for his comments on the physical appearance, race, sexuality, etc. of others. Michael generally was likeable rather than vilified because he was breathtakingly ignorant about that which was so remarkably obvious to most viewers.

Michael served as an entertaining example of an alternative type of harassment. He was not the classic “creep” but cringe worthy all the same. 

In a real-life example of this, the founder of a company who was in his 70s made comments about a 20-something sales associate’s appearance which made her feel uncomfortable and degraded. Among other things, he called her a “beautiful girl” and a “beautiful lady.” He encouraged her to “smile more.”

She objected, which led to an awkward meeting and the end of her employment. She then filed a human rights complaint in which the Tribunal noted none of the comments were inherently sexual, the founder had never made any sexual advances, nor was there any attempt to flirt or pursue a sexual relationship. His comments were described as “misguided, non-sexual, attempts to be friendly and warm.” The comments were “among the subtle forces which continue to reinforce, perpetuate, and exacerbate the disadvantage faced by many women in their workplaces;”

Women have long fought for the right to be evaluated on their merits. One persistent barrier to that goal is the conflation of a woman’s worth with her appearance. Society continues to impose expectations on women to be pleasing to the people around them, particularly men. Their appearance and outward manner are important components of that. While telling a woman to smile may feel like harmless banter, it imposes a burden on her to please people in a way that is disconnected from the tasks of the job, and the skills she brings to it. 

The Tribunal concluded:

Calling her “beautiful” or commenting on her appearance reinforces the message that her value is in how she is seen by others and not in the strength of her ideas, her skills, and her contributions to the work. And finally, calling a grown woman a “girl” in the context of her employment infantilizes and patronizes her. It signals that she is not an adult worthy of being taken seriously in their profession. Most often, these are not burdens or messages shared with men. The impact of this type of behaviour is to subtly reinforce gendered power hierarchies in a workplace and, in doing so, to deny women equal access to that space.

Gender identity

People may identify with a gender that does not conform to the traditional binary of male and female. It is that person’s internal and individual experience of gender. It is their sense of being, somewhere along the gender spectrum. 

Gender identity is distinct from gender expression. It’s the way a person outwardly expresses gender through things such as clothes, behaviour, speech, and pronouns. 

In an old Monty Python skit, a character shows his utter indifference to an unmistakably male shopkeeper by addressing him as “Miss.” Today’s real-life world expects more. As lawyers, when we attend court, we all proactively declare our pronouns so as to offer inclusivity to all and not make it a noticeable event if someone does self-declare. 

In a recent case, some employees asked the owner of the bar at which they worked to refer to them using “they/them” pronouns. The owner refused, insisted on using “he” and “him,” and claimed they were being “oversensitive.” He openly called them “trannies” in conversation with customers. The employees were awarded compensation for injury to their dignity, feelings, and self-respect, as well as for lost wages.

A “dead name” is the name given at birth to a person but is no longer their chosen name. 

Denny was born a biological female but became a transgender male. He had used a male name for some 15 years but had not legally formalized any changes and so his driver’s licence, banking, and tax information all still used his dead name.

Shortly after being hired as a truck driver, Denny advised the employer and work colleagues that although his dead name was still his legal name, he used the name Denny and masculine pronouns. He asked them to do so as well.

This had little effect as Denny was frequently dead-named and mis-gendered by co-workers and management. Their reason for this was their opinion that “to call anyone by a name other than their legal name…would be unprofessional and illegal.” Denny successfully pursued a human rights complaint. There was no legal space for personal opinion when it came to respecting another’s identity, but only room for respect of that individual’s choice. 

Digital dilemmas

Our phones and social media increasingly blend personal and work lives.

A male employee reported to a female supervisor, and they frequently and properly exchanged work related text messages. Then the male started to insert personal comments in the messages. He began calling his boss pet names like “dear” or “good looking,” and sent her internet images he thought were funny. 

One day the male was using his phone to show his boss pictures of his truck. He suddenly swiped over a picture displaying his genitals, with an “Oops, shouldn’t have done that.” He later offered (twice) to send her the pictures. The supervisor complained to management, who investigated, and fired the employee. Despite his 30-year discipline-free employment record, the dismissal was upheld at arbitration.

In another case, a laboratory technologist at a university frequently posted controversial content, including anti-Semitic views and racial stereotypes. While he did this on his own time, the employee had provided sufficient details on his Facebook account such that any reader would clearly know where he worked.

The Facebook posts sparked complaints about hate propaganda and racism and led to the university firing the employee. 

The dismissal was grieved and then went to hearing where the case turned on whether the posts were connected to the workplace, and whether they caused undue disruption to the work environment. 

Not surprisingly, the arbitrator held the posts violated the university’s policies regarding safe and respectful workplaces. The posts caused conflict at work, negatively impacted the employee’s coworkers, and made them uncomfortable and unwilling to work with him. The posts were also linked directly to his employment and so harmed his employer’s reputation. The dismissal was upheld.

A recent Ontario case dealt with the popular communications tool, WhatsApp, where five employees had exchanged messages including sexually inappropriate comments about female coworkers. Although the chats happened on their personal devices and during off-hours, they were discovered during an unrelated workplace investigation. 

The employees were fired, and then filed grievances, arguing this was, in essence, a private conversation that should not affect their employment.

An arbitrator initially ruled in favour of the employees, but a court overturned that decision. The court emphasized how even private messages can negatively impact the workplace if they leak into it as if it had occurred there. That inappropriate content had created a hostile work environment, and the employer had a legal duty to address it. 

The court noted how the person who had come forward specifically asked that nothing be done, and so there was no complainant challenging the misconduct. Regardless, once the employer had some knowledge of the matters, it had a legal obligation to investigate and act even in the absence of a complainant. The misconduct impacted not just the specific victims, but rather the workplace overall. 

Moving forward, embracing change

As the world evolves, so too does the way we must define and understand what it is to be a safe and respectful workplace. This requires vigilance and attention to far more than the well-established and obvious. 

Ensuring safety and respect requires more than just creating, publishing, and responding to complaints or a basic policy preventing a boss from abusing power and trying to obtain sexual favours from subordinates. 

Safety and respect instead must be embraced as a core value which adapts to our changing culture relating to individuality, inclusivity, and boundaries. 

Jeff Palamar is the leader of the Labour and Employment Law Practice Group at Taylor McCaffrey LLP in Winnipeg. Since 2008, Jeff has been listed in the peer-selected Best Lawyers in Canada in his field. He spends most of his time as an arbitrator and mediator, but also helps clients thrive by finding creative and proactive solutions to the challenges they face.

Jocelyn Shymko is an articling student with Taylor McCaffrey LLP.

Taylor McCaffrey LLP is the exclusive Manitoba member of the Employment Law Alliance, the world’s largest network of labour and employment lawyers.