Last month a U.S. federal court ordered Tesla to pay $137 million dollars to a former employee who was subjected to name-calling and racist abuse. Owen Diaz, 53, worked as an elevator operator for the company for nearly 10 months, but left the position voluntarily in 2016 after coworkers left racist graffiti and derogatory cartoons around the facility, and used racial slurs.
The decision confirms that Tesla violated Diaz’s right to a safe and healthy workplace. The automaker did not seriously consider the allegations and failed to address the racially hostile environment that was allowed to flourish.
Here’s what employees need to know about workplace harassment.
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What is workplace harassment?
In Canada, all employers have a legal obligation to address allegations of harassment in the workplace and to take appropriate steps to prevent it from happening.
Workplace harassment is any behaviour — verbal, written or physical — that an employee considers unwelcome. It could be as subtle as a rude comment, profanity or ridicule. Bullying, teasing and sexual harassment all fall under this designation.
Harassment could also include being excluded from meetings or being put in a situation that could set you up for failure. It doesn’t matter if it takes place at work, online or between colleagues outside of the office and beyond regular work hours.
Employers must respond to complaints
Provincial occupational health and safety rules require employers to have policies that outline how the company will respond to unacceptable behaviour. The policies also need to describe what an employee should do when harassment happens and whom they should speak to. In the U.S. proceedings, Tesla admitted it did not have these policies in place when Diaz was working there.
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It isn’t enough for a company to have a policy on harassment. Employers need to ensure that such a policy is distributed and that everyone is clear on what is unacceptable behaviour in the workplace. If a complaint is made, or a company is made aware that harassment is occurring, employers have an obligation to launch an investigation and take swift action to correct the situation.
Employees can’t be punished for harassment complaints
It is illegal for an employer to penalize or fire an employee for coming forward with a complaint, even if an investigation determines that harassment did not occur. Penalizing an employee is called a reprisal and constitutes a human rights violation.
A recent lawsuit against the Alberta premier’s office demonstrates what can happen when an employer retaliates against an employee for reporting harassment. Ariella Kimmel, a former UCP government staffer, says she was fired for speaking out against sexual harassment she witnessed at work.
Kimmel has filed a wrongful dismissal claim, which alleges that in addition to the harassment, she also witnessed verbal abuse and heavy drinking at work by government ministers. She is now seeking wages owed as well as hundreds of thousands of dollars in damages, which is payment meant to punish employers for reprehensible behaviour.
Every employee has a right to come forward, and should feel empowered to do so if they experience bullying. As an employment lawyer, I suggest the first thing employees do if they are subject to harassment is to speak to the appropriate person about the incident, whether that’s a manager or a human resources representative. Submit an account in writing, and include as many details as possible of where, when and how you were harassed. This gives your employer the opportunity to repair the situation.
Resigning with compensation over workplace harassment
If you are a victim of workplace harassment, and your employer has failed to deal with the problem, contact my team of employment lawyers immediately. The terms of your employment have been violated, and your employer has effectively terminated your employment.
I can help you claim constructive dismissal, which will allow you to resign with a full severance package — up to 24 months’ pay. You may also be owed human rights damages.
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Like Diaz, the former Tesla employee, all employees have a right to a safe and healthy workplace. If you’ve tried to deal with harassment, but you feel like you are getting nowhere, let me and my team deal with it.
Are you experiencing workplace harassment? Don’t suffer in silence — reach out to an employment lawyer and get help.
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.