Archives for May 2015

Francine had been disciplined before. She had been suspended for 3 days, for an angry outburst that she had in the shipping department. But this time was worse.

Francine was in the cafeteria, finishing her break. Three co-workers sat down at the same table, and within minutes she began yelling and swearing at them. One of them began talking to her, trying to quiet her down. She threw her cup of tea in his face, and then left the room.

Francine was terminated. The letter of termination cited the company anti-violence and harassment policies.

The most interesting piece of the story arose during mediation, when the grievor told the mediator that she didn’t have a problem with anger – she had a problem with the Filipino employees who were working in the plant. “They are all so tight, always together, and they are taking all the jobs in the plant. None of my nephews, and none of my friends’ kids are getting the new jobs…”

This is not just a problem with anger management. This is a problem with racism. Canadian workplaces are full of it.

Mark was new to the parks department. He was thrilled with his new job, and wanted nothing more than to work outside. He was fond of his co-workers, with whom he enjoyed regular Twitter banter about just about anything that came to mind. He commented on the breast size of the girls in the park, and on his view that the non-white cohort of the workforce worked at a slower pace than he and his buddies.

He laughed when one of his co-workers, a black female, replied to one of his tweets by calling him a major jerk. He laughed when she filed a grievance, asserting that he was poisoning the workplace with his offensive Twitter activity, and demanding that management take steps to prohibit the behaviour.

He didn’t laugh when he was suspended from work, pending investigation of the grievance.

This is not just a case of “boys will be boys.” This is discrimination on the grounds of sex and race. Canadian workplaces are full of it.

Angel had twenty years’ service with the company, and was pleased to see the posting for dispatcher. He applied immediately, confident that after all those years, he was going to see a less physical, more predictable, and slightly more prestigious position. When he learned that his competition for the job was the new kid – the one who limps – he lost it. His rant included comments about the “rookie cripple” and the “lousy gimp.”

Angel not only lost his bid for the dispatcher job; he was disciplined for violation of the company human rights policy.

This is not just a case of conflict between seniority and human rights principles, it is discrimination against those with disabilities. Canadian workplaces are full of it.

Consider the implications

A workplace in which there are human rights issues and conflicts can expect the following problems:

• Individuals experience pain and genuinely suffer
• Employees who are victims of discrimination work poorly and eventually get sick
• Employer reputation is threatened or impaired
• When workplace poisoning occurs over social media, the image of that workplace is immediately broadcast widely, without geographic boundaries. Global efforts become global embarrassments.
• There are hostile feelings among employees
• Groups and cliques of employees form
• Individuals and groups become marginalized
• Hostilities flare up from time to time, raising threats of and actual violence
• Union executive become burdened
• Time and effort are invested in individual conflicts
• The relationship between the union and management suffers
• Money is spent on external resources – investigators, lawyers, mediators, arbitrators

Individual conflicts might be resolved, but systemic discrimination often remains as a fertile ground for the next individual conflict.

We Have the Resources

Human rights legislation is not new to Canadian workplaces in any jurisdiction. We have a rich history of meaningful anti-discrimination legislation. We have huge bodies of jurisprudence breathing vigour into the statutes. Our collective agreements have come to recognize, respect and embrace human rights principles. We have proactive human rights commissions that provide accessible and practical resources to individuals, unions and employers. We have human rights and anti-discrimination policies by the truckload in every workplace in the land. There is no shortage of educational programming, of policy reviewing, of posters in lunchrooms.

But the Problem Remains

Yet there remains, I respectfully argue, a continuing cloud of discrimination in Canadian workplaces. Discrimination continues to poison the lives of individual employees, burden our unions, bog down our management teams, and over-employ our lawyers, mediators and arbitrators.

It continually surprises me, in the course of practising mediation and arbitration, how frequently these issues arise in our workplaces. How pervasive the problem is.

Part of the difficulty, of course, is that although some of us have invested our entire professional lives learning, teaching and fighting human rights issues, every time a workplace welcomes a new employee, that workplace opens its doors to a new influence. That new influence is not likely to have had the benefit of all of that learning, any of that teaching, or any of that fighting.

The challenge of fighting discrimination arises anew every time we hire a new employee.

The task of teaching what human rights are, what discrimination is, and what is and is not permitted in the workplace is a critical task that must be brought alive with every new hire. It is a task that requires vigilant attention. It is a task that is worth repeating and refreshing.

It is Our Responsibility to Teach

With few exceptions, high schools do not teach fundamental human rights concepts. With few exceptions, and unless students pursue specific training, undergraduate university curricula do not include the teaching of fundamental human rights concepts. With few exceptions, career programs and professional schools such as nursing and teaching, do not teach fundamental human rights concepts.

The ultimate responsibility to teach human rights concepts, to explain what discrimination is and why it is prohibited by law, falls upon the employer and the union.

At the risk of repeating a point – when the employer takes on a new hire, when the union welcomes a new member, the likelihood is that although this person has heard of a “human rights code”, they have absolutely no familiarity with it. They are not familiar with its principles. More importantly, they are not familiar with what behaviour is and is not allowed in the workplace. Even with those who have some fundamental training in human rights concepts, there is often a “disconnect” between their appreciation of the concept, and their ability to see what behaviours are and are not discriminatory.

I will go so far as to say that with some frequency, even those have been engaged in management roles or union responsibilities require fundamental education in human rights concepts and practical application of those concepts. In teaching human rights principles at Queen’s IRC, we are constantly impressed with the light bulbs appearing over the heads of those who have been familiar with human rights lingo for years, but have never quite appreciated how the words apply.

In the classroom, seasoned managers are still seen rolling their eyes over the challenge and cost of, for example, accommodating the employee disabled by alcoholism, addressing the needs of a parent whose disabled kid contributes to attendance issues, or coping with the conflicts caused by the gender-shift surgery. Our instructors remind them that human rights protections reflect the deeply held values of Canadian society, delivered as a result of democratic legislative process.

Human rights codes are not stable or one-off enactments. They change from time to time, as the norms and values of the community shift. Forty years ago we did not consider gender a characteristic worthy of workplace respect. Thirty years ago we did not consider alcoholism or drug addiction to be a disability. Twenty years ago we did not consider sexual orientation worthy of protection, family status an issue of workplace concern, or transgendered identity a choice worthy of dignity. As the norms and values of our culture shift, so do our human rights codes and their requirements.

Human rights codes, at their core, reflect the reasons that most of our ancestors came to Canada. They continue to be part of the reason that those from less peaceful parts of the world still make that journey.

So What is the Answer?

It is critical that employers and unions continue to embrace their responsibilities to learn and teach fundamental human rights concepts. It is critical that we continue to teach managers and supervisors what the principles are and how they apply to day to day behaviours. It is critical that each new hire receives a meaningful education about what discrimination means and how the rules apply in their workplace.

No, it is not sufficient to hand a new hire a copy of the human rights policy, and ask them to initial it. That is not teaching – that is mere administration.

No, it is not enough to call employees or members together once every few years to hear someone talk about human rights ideals. That is not teaching either.

No, it is not enough to post the results of the latest arbitration award or court decision that affected your workplace, and have employees learn from the mistakes of others. That may be teaching, but it is very expensive teaching.

How to Teach?

Adults learn from reading, listening, discussing, and then practicing. We have to have an opportunity to absorb the information, and then to apply it. We need the lessons, but then we need to learn how to implement them. We have to practice the lessons. We need to translate the human rights lingo into every day words and actions.

Classrooms, seminars, workshops, on-site sessions, and role play opportunities are essential pieces of in-house training systems for all employees. Adult students must be required to feed the information back to the instructor, in order to break the learning barrier. Human rights training in any environment must be interactive. Examples of behaviours that are and are not appropriate must be provided – again and again.

Managers, supervisors and union executive require clear opportunities to learn what is and is not permissible behaviour. Although front line workers require a degree of human rights training, a workplace culture will not be affected and improved unless managers, supervisors and union executive have a firm grip on the concepts, and are ready to model behaviour appropriately.

We have to teach employees, managers and supervisors appropriate intervention and behavioural correction when others commit acts of discrimination.  Counselling must accompany progressive discipline in this area. (Discipline alone is a poor teacher, as perpetrators become defensive and denying.) This is a tough area to teach in-house. It should include some awareness of “difficult conversations” and skillful feedback.

Just as workplaces assess the risk of workplace violence by surveying their employees, the practice of repeated surveying for discriminatory behaviours and workplace poisoning is advised. Regular scrutiny will track shifting sensibilities, enabling policies and practices to shift as well.

Finally, an acute awareness of human rights in the workplace will translate into a practice of never missing an opportunity. Any time employees gather in one place is a good time to remind them that this workplace, and this union, reflect certain values, and that their behaviour, day in and day out, is a reflection of those values.

There is no downside to getting passionate about human rights in your workplace. It is individuals who affect change, and the small steps that influence the larger shifts.  Train and empower one person to be the advocate for the human rights high ground. It is a valuable investment, and one that will return human rewards.

About the Author

Elaine Newman, Ba, LL.B., LL.M., was called to the bar in Ontario in 1979. Elaine is a very experienced full-time arbitrator and mediator, specializing in labour relations, employment, and human rights matters. She is a teacher, an author, and frequent speaker on labour, employment and human rights issues. Elaine served as Associate Director of the LLM program in Labour Relations and Employment Law at Osgoode Hall Law School 2002 to 2008. She was lead instructor for the Advanced Dispute Resolution Course at Atkinson Faculty, York University for ten years, where she taught the Ethics of Mediation course, and the Advanced Practicum course. She is a frequent guest speaker at Queen’s IRC programs, and is lead instructor of the Strategic Grievance Handling program. Elaine is the author of the online course, “Practical Ethics for Working Mediators”, offered by the ADR Institute of Ontario.  Her textbook, Preventing Violence in the Workplace, is published by Lancaster House, Toronto.