As an employer, if you tolerate too much harassing behaviour from your staff or customers, you open yourself up to a fine or lawsuit. Over the long term, you also risk a toxic atmosphere that harms your workers, turns off customers and ultimately hurt your bottom line.
If you think harassment is an ugly word, consider that its close cousin is violence. The terms exist on a continuum that encompasses a laundry list of behaviour you may dismiss as relatively harmless: teasing, spreading rumours, swearing, pulling pranks and arguing.
Heather L. MacKenzie, founder and senior partner at Vancouver’s Integrity Consultants, practised law for several years specializing in employment law, insurance law, and human rights issues including harassment and discrimination. MacKenzie offers a loose definition that she says would be similar across the provinces: “Harassment is comment or conduct that ought reasonably to be known to be objectionable or unwelcome, serves no work-related purpose, and has a detrimental and substantial effect on someone in the workplace.”
That behaviour is rooted in one of the “prohibited grounds,” she says, of which there are about a dozen. Most provinces set out rules for race and gender and many also address age and socio-economic status. The Ontario Human Rights Commission, for example, lists 14, among them ancestry, creed (religion), ethnic origin, sexual orientation, age and disability.
The legal notion of violence has expanded since the 1990s to include inflicting emotional harm, MacKenzie says. “We tend to think of violence as being an act of physicality – as a violent act that may involve a weapon or use of bodily force. We now recognize that “we can wreak terrible psychological and emotional harm on someone without ever laying a hand on them,” she says. “We can do this through cyber behaviour or through words or through psychological warfare – which can involve using no words at all.”
“We define harassment quite broadly as any behaviour that demeans, embarrasses, humiliates, annoys, alarms or verbally abuses a person and is known or would be expected to be unwelcome,” says Jessie Callaghan, a senior technical specialist at the Canadian Centre for Occupational Health and Safety who assists employers in the field of workplace violence. “It can be words, it can be gestures, it can be intimidation, it can be practical jokes.”
“We encourage people to look at the behaviour with what we call the ‘reasonable person test,’ ” Callaghan says. “Would a reasonable person think that behaviour is unwelcome, or is the person who’s receiving the behaviour saying it’s unwelcome? That’s an important part.”
What does harassment look like?
Harassment can include discrimination, sexually charged comments or conduct, bullying or isolation. And it can come from any direction: management, staff or customers.
MacKenzie offers a hypothetical example. “I come into the restaurant and I’m teasing someone I work with – male or female – about how much action they got on the weekend. Or probing about their sex life or making comments about my own. And that’s making somebody feel uncomfortable. You’ve got the ingredients for sexual harassment in that commentary. On the continuum, you can then move to the possibility, or the risk, that this behaviour moves into the realm of violence or physical touching.”
It could turn into a situation where two employees are closing down the restaurant together and it turns into a situation of sexual assault, she says.
It’s important to remember that sexual harassment does not necessarily require sexual interest, MacKenzie notes. It can happen in an all-male or all-female environment where something as seemingly harmless as a comment about someone’s clothing or a rumour can trigger all sorts of emotions and consequences in the person it’s aimed at.
Making someone an outcast is another common form of harassment that can have devastating consequences. “It’s death by a thousand cuts – or cumulative effects,” she says. “It is a big deal.”
Restaurant industry at risk
Several cases of workplace discrimination and sexual harassment have come into the limelight this year, suggesting the restaurant industry is especially prone to such issues.
“Restaurants are consistently challenged,” MacKenzie says. That may be because restaurant employees tend to be young and not clear on what’s acceptable in the workplace. They often come straight out of high school into their first job, she says.
It may also be that restaurants are social settings, with a lot of interaction happening after hours or on social media, which blurs the lines between socializing and working and is hard to control, she adds.
Tipped employees are more vulnerable to harassment from customers because those customers may have higher expectations than the employee has, she says.
Crossing the line
It’s important to draw a line between appropriate and inappropriate conduct, let others know when it’s been crossed and respond when that happens.
In the hospitality industry, social boundaries sometimes are blurred, MacKenzie says. For example, when employers and supervisors socialize outside of work with employees it is a common and potentially tricky situation where there is often pressure for all to join in.
How do you draw the line? She suggests asking your staff these questions: “Will what I say or do have an impact on our ability to work together? Does it connect to the reputation of me or someone I work with?” If the answer is yes, she says, think twice before engaging in that behaviour.
The same is true of workplace humour. Jessie Callaghan offers some helpful questions: “Would a reasonable person find that funny? Did the person on the receiving end of joke find it funny? Can you tell that they are uncomfortable or stressed by it? Did they report they didn’t find it funny and didn’t want to be the recipient of it?”
“It’s very hard to say you have zero tolerance because there is subjectivity involved,” she says. “I would encourage the owner or manager to keep a workplace as positive as possible so that you don’t have to be gauging whether or not a comment or conduct crossed the line. When things do cross the line, make sure everyone knows it. And if people are flirting with the line a lot, you might want to provide some feedback.”
Dating within the workplace is another blurred line. Asking a co-worker for a date is not sexual harassment, MacKenzie says. “When the answer is no and you continue to ask them – that’s sexual harassment. As long as the two parties are not in a line of authority, there usually isn’t a problem. But when one of the parties is in a position of authority . . . it doesn’t look good. It requires a lot of discretion for a supervisor to carry on a romantic relationship with their employee without appearing to favour that employee in work matters, she says.
Why it matters
Harassing or bullying behaviour has all sorts of consequences not only for its victims but also for the overall health of the business.
“People don’t realize that when you humiliate someone, you set off a biological chain reaction that can lead to lack of sleep and disruption of the thought process that depletes serotonin and cortisone, and can result in depression and even post-traumatic stress disorder,” MacKenzie says.
Aside from the very real negative psychological effects, there are obvious effects on a business. If you’re found not compliant, you may face a fine or lawsuit,
A negative atmosphere can affect productivity in a direct way. “You can have decreased productivity if people don’t want to come to work and are feeling victimized when they’re there. You can have higher turnover and there is a cost to hiring and training your staff,” Callaghan says.
“I would think that customers would detect it at times. If it’s a negative environment, you could lose business. Employees might not show up to work if they’re on a shift with a certain person or if it’s a difficult shift to work and a negative environment.”
This also could lead to recruiting problems, she says. “Word would get out. A toxic work environment can affect everybody.”
As an employer, you carry responsibility for making sure your workers are safe from detrimental comments and behaviour. You can do this by arming yourself with information, developing a behaviour policy based on the risks around you and setting a tone of respect that will inspire others.
“There is an expectation that even if you have only one employee, you need to ensure a safe and healthy workplace,” MacKenzie says.
This need not be a heavy task. Owner/operators should familiarize themselves with the legislation that applies to their province or territory.
“You need to do some research online. Set aside a day to make sure you’re in compliance,” MacKenzie says. “If there are things surprising you, make a list.”
It’s a wise investment to hire a lawyer or a law student who specializes in occupational health and employment law, she says. “One hour with a specialist is worth three with a generalist.”
“The onus is on the employer to be aware of their responsibilities,” she says. “When a compliance officer checks into a complaint, ‘You never told me’ is not a defence. Find the time to make sure you’re compliant.”
It is also good practice to have a harassment policy in place for staff and customers, although the majority of provinces do not have a duty to have one. “We should transcend the legal requirements here,” she says. Set up guidelines, communicate them to employees and apply them with consistency and fairness.
Though legislation varies in different jurisdictions, there are some common elements, Callaghan points out.
“All require workplaces to do a risk assessment based on a their particular circumstances,” she says. In the case of a pizzeria, that would include assessing risks for delivery drivers who might not know what to expect when they show up at someone’s door – risks common to most pizza restaurants. The exercise would also include assessing your store’s particular location. Most legislation requires that assessment to be reviewed regularly and especially if circumstances change; this could mean a change in your business or a new business moving in next door that may be attracting a certain clientele.
Like MacKenzie, Callaghan strongly encourages employers to familiarize themselves with requirements in the province where they operate and suggests that if owner/operators don’t find the answers they are looking for in their jurisdiction, they should keep looking until they do.
“I would really encourage you go beyond the minimum. That’s how you prevent the bigger problems from happening,” she says.
“I would encourage them to apply their workplace violence prevention policy to everyone who does business with them. It’s not just employee-to-employee or customer-to-employee, but it could be suppliers to employees as well. It’s everybody who has something to do with your business.”
She suggests posting a sign that makes it clear harassment and bullying are not tolerated. “You can then point to that and say, ‘We don’t act like that in here,’ ” she says.
Set a tone of respect
Both MacKenzie and Callaghan say it’s crucial for employers to be a good example for staff and customers.
“Honour one another, respect one another,” MacKenzie says. “If you build your business with that in mind and you will set the stage for a healthy workplace.”
“As an employer you set the tone for your pizzeria. It’s important to apply a high and consistent standard of accountability. When hurtful behaviour happens, have a conversation with staff telling them it is not acceptable and explaining why not. Give them one warning and no second warning,” she says.
Employers should not put too much power in the hands of your supervisors, MacKenzie suggests. “A trusted team is great, but don’t be a stranger. Check in every month or at a regular interval that makes sense. Ask them how they are doing. Getting to know them helps you to read them,” she says.
Watch for other clues that there is a problem. For example, have several people been asking to change shifts lately? This could be a sign they are avoiding certain staff.
“Be curious. Take the time,” she says.
While there is no legal obligation for an employee to tell their manager first before lodging a complaint, MacKenzie adds, “If I were an employer, I’d rather be a workplace where people know they can speak up.”
Callaghan agrees. “Be present, be observant, and respond to reports.”
“A lot of it is about building a positive workplace culture. You don’t want to be the kind of place where people don’t want to come into work,” Callaghan says.
“It’s an amazing opportunity to get young people off on the right foot in a working world by teaching them effective communication skills, problem solving and conflict resolution,” Callaghan says. “If they can be coached on all of that, it can have a positive impact.”
Tools and resources
- “Best practices: Policies for workplace violence and harassment” (Restaurants Canada website) including links to guidance for each jurisdiction
- Small business resources (on provincial government websites)
- Provincial and territorial human rights agencies (http://www.chrc-ccdp.ca/eng/content/provincial-and-territorial-human-rights-agencies)
- Federal and provincial labour standards (http://www.cic.gc.ca/english/work/labour-standards.asp)
- Lawyer or law student specializing in employment or occupational health law
Centre for Occupational Health and Safety tools:
- Canadian Government Departments Responsible for OH&S
- Bullying in the Workplace | Violence in the Workplace (overviews)
- Violence in the Workplace Awareness (free e-course suitable for employees)
- Violence in the Workplace Prevention Guide (pocket guide or PDF, $15)