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Jul 30, 2012

Ontario tribunal ruling pits union rights against discrimination, sexual harassment protection

By Linda Johnson
A recent decision by the Human Rights Tribunal of Ontario has found that sexist language against a worker is justifiable in cases where it is accompanied by legitimate comment under labour union's constitutional rights.
Mariann Taylor-Baptiste, a manager at the Don Jail in Toronto, alleged that comments posted on a blog run by the jail’s Ontario Public Service Employees’ Union (OPSEU) local discriminated against her because they contained sexual stereotypes and identified her marital status.

The comments, posted by Jeff Dvorak, OPSEU local president, included suggestions that Taylor-Baptiste had obtained her management position through sexual relations, that she got the job only because of her husband and that she was an incompetent woman in contrast to competent men who were personal friends.

In his decision, David Wright, tribunal associate chair, said the main issue was whether the blog posts violate the protections of the province’s Human Rights Code against “discrimination with respect to employment” and “harassment in the workplace” on the grounds of marital status or sex.

Wright agreed the language was sexist and the comments drew on sexist stereotypes, but said they had to be viewed in the context of Dvorak’s role as local union president. The blogs were directed to union members, he said, and dealt with union-management relations — specifically with the manager’s handling of recent labour and safety issues. As a result, he concluded, the comments were protected under the Charter of Rights and Freedoms.

“They are, in my view, analogous to comments on labour-management issues made at a union meeting or a union newsletter,” he wrote in his decision. “Comments on such issues are at the core of the constitutional protections of freedom of association and expression and the union’s right to operate independently of the employer.”

Nick Milanovic, a law professor at Carleton University and labour arbitrator, describes the decision as an “outlier” in the case law. More recent federal and provincial legislation, he says, are aimed at curbing sexist expression, whether it occurs physically in the workplace or outside, through social media.

“This is not where the mainstream law is going. If I had a client ask me about this kind of behaviour in the context of labour relations, my opinion on the face of it would be that this is not permitted by the law,” he says.

In this case, Milanovic says, the tribunal decided to balance the legitimate interests of the trade union in communicating its views, as protected under the charter, against the complainant’s right under the Human Rights Code to work in a place free of sexist expression.

“But it didn’t distinguish between legitimate and illegitimate expression. So it dealt with the expression, as one thing, and minimized the sexist language use and upheld [the union’s] right to make this kind of expression in a blog,” he says.

It would not have been difficult, he adds, to distinguish between the legitimate concerns that the trade union had in its day-to-day labour relations with the employer and its manner of expression, and to ask that it not express those concerns in language that is prohibited by the code.

Milanovic also questions the tribunal’s finding that “there were no code-based reverberations in the workplace.” This conclusion was based, in part, on its determination that the blog was not an extension of the workplace since — although publicly available and read widely within the jail — it was directed at union members.

In addition, while the tribunal accepted the postings had greatly upset Taylor-Baptiste and caused her a lot of stress, it concluded there was no evidence any employee had said or done anything as a result of the sexist language. The manager was, they ruled, primarily affected by the “bringing of her personal life into the workplace,” not the sexist nature of those comments.

 “There’s an effect upon the complainant,” Milanovic says. “She has medical and arguably psychological issues as a result of this communication, and the tribunal says, essentially, it didn’t really affect the workplace. On the basis of what they say occurred in the case, I have a hard time seeing how that’s so.”

Kevin MacNeill, a partner in Heenan Blaikie, agrees the decision is unusual, saying the reasoning is difficult to accept. He points to two recent cases where school board representatives were found to have discriminated when they used derogatory or stereotypical language, although their actions were not discriminatory. In these cases, the tribunal concluded the representatives could have expressed their views without using discriminatory language.

“Yet, in the case at hand, the tribunal appears to have relaxed those standards for a union president, invoking constitutionally protected union speech to deny a remedy to the manager, who was subjected to the sexist comments,” MacNeill wrote in a blog post.

“To me, it seems counterintuitive to suggest that constitutionally protected rights may be exercised in a way that is contrary to human rights norms, indeed contrary to the equality principles enshrined in Section 15 of the charter, especially when there is no apparent need to exercise these rights in this way.”

Milanovic says he does not expect the decision will set a precedent for cases in which both unions and employers will ask the tribunal to ignore expression that contravenes the Human Rights Code on the grounds they were dealing with legitimate business.

“I don’t think this will be the basis of a new line of case law, because it sits within a larger context, the context of evolving human rights norms, the introduction of the charter itself and a movement in the law to begin to deal with these matters in an adjudicative way,” he says.

“And here we have a case that seems to give less weight to what would seem to be a violation of Section 5.1 of the Human Rights Code.”
 
However, MacNeill believes the decision may have “opened the door” to further cases where the discriminatory action of unionized employees will be allowed “under the guise of constitutionally protected union rights.” Moreover, he adds, the case suggests the tribunal is applying two standards for   discriminatory language.

“If you are a non-management employee, you stand to be protected against discriminatory comments. On the other hand, if you are management, you may be expected to tolerate sexist, racist comments that are interwoven with otherwise valid union expression,” he says.

“Let’s hope that, in future decisions, the Tribunal makes a point of reassuring the management community that this is not the case.”

The decision was published July 16 and is subject to judicial review.