By Jeffrey R. Smith
Harassment and discrimination has been the subject of many headlines in the news, and in many cases it involves the workplace. There are a lot of human rights cases that have resulted in discriminated workers receiving damage awards worth a good sum of money – damages that stem not just from the discrimination itself, but sometimes the mental anguish and stress that can stem from it as well.
Interestingly enough, there are circumstances where a harassed employee isn’t entitled to damages for a violation of her human rights – but may still get some money anyway.
Harassment and discrimination in any form, in any situation, isn’t appropriate anywhere, particularly at a workplace where a professional environment is expected. And in more serious circumstances, it can have lasting effects on the victims – stress, depression, anxiety, fear – that can be detrimental to someone’s mental health and ability to live a normal and productive life.
And if the worker’s ability to live a normal and productive life is affected, so could be her ability to perform her job.
Extreme stress and other mental health issues have also come to the forefront in the workplace. Mental health is being recognized generally as something requiring medical and regulatory attention, and at the same time it’s being treated more and more as a legitimate part of overall health.
Employees with mental health issues are being treated more similarly to employees with physical health issues when it comes to accommodation, time off, and workers’ compensation. And this is where it can tie into workplace harassment and discrimination, as generally injuries – whether physical or mental – that arise out of someone’s work are eligible for workers’ compensation benefits, which then preclude the worker from pursuing other damages elsewhere.
An Ontario arbitrator recently made this connection when reviewing a worker’s claim for damages for lost time and medical expenses because of symptoms related to mental stress the worker developed after being harassed and discriminated against at work. The worker also filed a workers’ compensation claim for benefits from a mental injury caused by the stress.
The union, on behalf of the worker, argued that recent changes to the Ontario Workplace Safety and Insurance Act (WSIA) excluded stress “caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.” Since the worker’s stress was caused by the employer’s actions in harassing her in her job, there was no basis for a workers’ compensation claim and the worker could pursue damages with the grievance arbitrator.
However, the arbitrator disagreed, finding that harassment and discrimination – especially when it gets to the point where it causes serious mental stress issues – is not something that can or should be reasonably expected to be experienced in the normal course of employment, no matter what the job may be. As a result, the harassment and discrimination is not part of employment and qualifies as an unexpected accident or series of events leading to the mental injury: See OPSEU v. Ontario  O.G.S.B.A. No. 7 (Ont. Grievance Settlement Bd.).
And there you have entitlement to workers’ compensation benefits that rules out a claim for damages elsewhere, such as before a human rights tribunal.
So when can harassment and discrimination not be subject to a human rights claim? When it causes mental stress that is serious enough to be considered a mental injury arising out of the course of employment. Either way, the employer is going to pay in some way for allowing such a situation to exist in its workplace, but it’s possible it could come off looking a little better without a human rights claim against it – or at least have one dismissed because of workers’ compensation legislation overriding it.
It could be up for debate over whether it’s the best way to handle a mental stress claim stemming from workplace harassment and discrimination, but it’s an interesting concept that’s started to rise out of the double trends of increasing mental health workers’ compensation claims and the association of serious mental health issues with such harassment and discrimination.
Jeffrey R. Smith is the editor of Canadian Safety Reporter
and Canadian Employment Law Today
, sister publications of COS.