Q&A for Non-Unionized Employees
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The information provided herein does not, and is not intended to, constitute legal advice; instead, all information and content is for general informational purposes only. |
Q&A for
Non-Unionized
Employees
What does the law say about antisemitism in the workplace?
- Federal and provincial laws prohibit antisemitism and racial discrimination or harassment in Canada’s workplaces. Occupational health and safety legislation and human rights codes protect Canadian employees from all serious forms of bullying, discrimination, and overt racism by fellow employees, employers, managers, and even clients, customers, and suppliers.
- In Ontario, for example, antisemitism, hateful slogans, and racially motivated misconduct can be addressed through the Ontario Human Rights Code (the “Code”) and the Ontario Occupational Health and Safety Act (the “OHSA”). The Code prohibits discrimination or harassment based on certain protected grounds, including ethnic origin, place of origin, and creed, while workplace harassment is specifically prohibited under the OHSA.
- Under the Code, every provincially regulated employee has the right to equal treatment with respect to employment without discrimination and the right to freedom from harassment in the workplace, based on all prohibited grounds. The Code and the OHSA define “harassment” to mean engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. The OHSA, however, is more specific in that it specifies that the comment or conduct must not be against a worker in a workplace.
- In other Provinces, similar legislation applies. In federally regulated workplaces such as banking and air transit, the Canadian Human Rights Act and the Canada Labour Code provide similar, strong protections to employees facing antisemitism and racial harassment or discrimination.
How do I know if a comment or conduct is antisemitic?
- The International Holocaust Remembrance Alliances’ (“IHRA”) working definition of antisemitism is “a certain perception of Jews, which may be expressed as hatred towards Jews.” However, given the increasingly broad and competing definitions of antisemitism, what exactly constitutes antisemitic comment or conduct is not always clear.
- However, comment or conduct would likely be viewed as antisemitic if it had the potential to be prejudicial, discriminatory, threatening, or demeaning toward the Jewish people and/or negatively impacted them. Comment or conduct can still be antisemitic even if such comment or conduct was not made with the intention of being so.
The IHRA has published a non-exhaustive list of examples of antisemitism, which can be found here. Even if conduct did not rise to the level of antisemitism, it could nevertheless constitute harassment or discrimination.
If you are unsure of whether a comment or conduct made in the workplace is antisemitic, you may still wish to report the behaviour to your employer, and, if you believe in good faith that it is reasonable to do so in the circumstances, you are legally entitled to do so. You may also wish to contact CIJA for assistance.
What should you do if you experience antisemitic comment or conduct in the workplace?
- Document everything that was said or heard (including a timeline of events, taking screenshots, and writing down what happened immediately following the incident) and document the names of any witnesses to the comments or conduct.
- Depending on your employer, there may be a variety of options. If in doubt of which to take, speak with your human resources department.
- Federally regulated employers are mandated to accept harassment and discrimination complaints under a separate process.
- For other employers, you should address this with your manager or the human resources department.
- You should always consult your company’s workplace harassment or discrimination policies, which will likely include the option to make a formal complaint.
What is the “workplace”?
- A “workplace” includes the physical office in which you work as well as other locations you attend in connection with your employment, including work-related events; conferences; training sessions; events during business travel; client sites; company sponsored events, and/or work-related communications. The workplace does not, however, include personal conversations or interactions with colleagues that take place outside of work or in the public domain.
- Posts on public social media platforms, however, particularly those on profiles that explicitly identify your employer via career listing or direct hyperlink, could properly fall under the scrutiny of employers. Therefore, if antisemitic, hateful, racist, or discriminatory content is posted on a “personal” profile, an employer may nevertheless choose to investigate, discipline, or otherwise take action against an employee who posts to the detriment of the employer.
What are the employer’s obligations if it receives a complaint of antisemitic comment or conduct in the workplace?
- Under the OHSA, employers have a duty to conduct investigations on incidents and complaints of workplace harassment that is appropriate in the circumstances.
- Following the investigation, the worker who was allegedly harassed and the alleged harasser (if they are also a worker of the company) will be informed in writing of the results of the investigation and of any corrective action that has or will be taken as a result of the investigation. The company, including its managers and supervisors, are prohibited from taking any adverse action against a worker who has brought forth a complaint of harassment.
- Consult the relevant harassment or discrimination policy in place at your workplace.
What if the antisemitic comment or conduct is by a superior?
- If the antisemitic comment or conduct is by a manager or other superior, you should still report the incident in the normal course.
- The harassment or discrimination policies at your workplace will likely include a passage on whom to contact if the alleged harasser is your superior who is usually the point of contact. If no other point of contact is provided under the policy, you should contact human resources.
- Speak with your human resources department for advice on how to manage conduct from a superior.
What steps should I take if I am disciplined or terminated from my job because of my support for Israel?
- Support for Israel, absent any violation of company policy, is not grounds for discipline from employment.
- If you are disciplined by a superior for your support of Israel, you may wish to report this behaviour as harassment or discrimination. If your support of Israel is tied to any protected ground under a Human Rights Code (for example, ethnic origin, place of origin, or creed) this could establish a claim of discrimination.
- In such circumstances, you may wish to contact a lawyer to pursue legal action against your employer. You may also be able to file a human rights complaint against your employer. CIJA can assist you with this process.
- If, in standing with Israel, you make comments or engage in conduct that could be viewed as harassing or discriminatory by other workers, this could be grounds for discipline.
- It is always appropriate (and legally advisable) to be dignified, civil, and respectful when expressing your support for Israel and in standing up against racism, antisemitism, and harassment or discrimination – in the workplace and beyond.
What should I do if I learn about antisemitic comment or conduct by a colleague outside the workplace?
- Notwithstanding the definition of “workplace” above, if, for example, a colleague is posting something online that could be viewed as threatening, offensive, or in contravention of company policy (for example, the company’s social media policy, workplace violence and harassment or discrimination policy, etc.) this could affect the workplace and should be reported.
- If the post is public and if the employee identifies as being an employee of the organization, they could possibly be the subject of discipline (off-duty conduct). Take screenshots and contact human resources.
- Antisemitic comment or hateful conduct made by a worker outside the workplace should be reported. Whether an employer will – or is required to – investigate the incident and/or take corrective action against the offending employee will depend on the circumstances.
When should I consult with a lawyer about antisemitism in the workplace? What steps can lawyers take to fight workplace antisemitism?
- You should consult a lawyer about antisemitism in the workplace once you have exhausted all internal avenues to rectify the situation.
- For example, if you have submitted a complaint to the company regarding an incident of antisemitism and the company refuses to investigate it, or if you are experiencing adverse treatment in the workplace because of your religion or views on Israel, this may be an issue that you should address with a lawyer.
- Your lawyer will advise you of your rights and work with you to identify your best course of action.
What other resources are available for employees confronting antisemitism in the workplace?
Please consider the resources that the Ontario Ministry of Labour has provided here.
Questions, comments, or concerns? Get in touch with us at [email protected] |