THE JOYLESS SOCIETY - A JOKE FREE WORKPLACE

An Ontario Department of Labour pamphlet asks “What is Workplace Harassment?”  It begins to answer this question by referencing the definition of workplace harassment in Ontario’s Occupational Health and Safety Act.  Workplace harassment means "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome."  According to the Ontario Department of Labour  “Some of the types of harassment that workers could experience in the workplace include sexual harassment, teasing, intimidating or offensive jokes or innuendos, display or circulation of offensive pictures or materials, unwelcome, offensive, or intimidating phone calls, or bullying. Leering, unwelcome gifts or attention, offensive gestures, or spreading rumours could also be considered harassment.  It says “This definition of workplace harassment is broad enough to include harassment prohibited under the Ontario Human Rights Code, as well as "psychological harassment" or "personal harassment."

This is a typically very broad definition of harassment now found in like statutes.  In New Brunswick personal harassment means “any objectionable or offensive behaviour that is known or ought reasonably to be known to be unwelcome. It includes objectionable conduct, comment or display made on either a one-time or continuous basis that demeans, belittles, or causes personal humiliation or embarrassment”.  The test in Ontario and New Brunswick is essentially a subjective test since the determining factor is whether the conduct is “unwelcome” to the so-called victim.  This contrasts to the U.S. where at least federally workplace harassment must be severe or pervasive enough to create a "hostile or abusive work environment" for the plaintiff and for a reasonable person. 

How far reaching is workplace harassment in Ontario?  Consider this example.  A fellow worker, who is an avowed atheist, is reading The God Delusion by Richard Dawkins.  She brings the book with her to lunch and is “confronted” by the victim who makes it very clear that because of his own fundamentalist Christian beliefs he finds the “display” of this book as unwelcome and offensive.  But our harrasser doesn’t care.  The victim can read his bible at lunch if he so chooses and she will read Dawkins so she continues to bring the book to the staff lunch room.  Under the definition she is engaging in harassment because HE finds the display of the book offensive and SHE KNOWS that it is unwelcome.  In New Brunswick a single so-called objectionable comment or display (like the cover of the God Delusion) if it is unwelcome and is embarrassing (to a complainant), constitutes workplace harassment. 

Even an unwelcome gift can constitute harassment.  Jill brings back female figurines from her Cuban vacation and gives one to each of her five co-workers.  One of the co-workers is offended by the voluptuousness of the figurine.  Once again we have workplace harassment.

Teasing is included in workplace harassment.  So are any jokes that the sensitive individual might find offensive.  If a person wants to avoid problems at his workplace, he or she should be suitably dour - keeping comments to a minimum avoiding saying anything beyond vague pleasantries.

Leering is workplace harassment.  What is leering?  Does it mean looking at someone for too long a period of time or is it the nature of the look?   A leer is defined in the dictionary as looking “at someone in an evil or unpleasantly sexual way”.  How do we know that there is an evil or unpleasantly sexual thought behind a look.  Given the overall tenure of workplace harassment law in Ontario it is the victims’s perception which is determinative - if the victim “feels” that there is something sexual or evil in a the perpetrator’s look, then that must be the case.  So how do you avoid being accused by the sensitive individual of leering?  Keep you head down.  Avoid eye contact.

Of a similar vein is the notion of offensive gestures.  Is rolling your eyes an offensive gesture?  It may well be very offensive to an easily threatened individual.  It is readily apparent that the all encompassing and very subjective definition of harassment is creating a new tyrant - the sensitive individual who is quick to see offense in the conduct of her fellow workers and bosses.

Workplace harassment is not limited to one worker “harassing” another worker or a boss “harassing” a worker.   We are told in the Ontario Department of labour pamphlet that  “Workplace harassment, like workplace violence, can arise from a variety of sources, such as other workers, supervisors, customers, clients, patients, students, intimate partners, or family members.”

It is similar in British Columbia where the definition of bullying and harassment in British Columbia includes any inappropriate conduct or comment by a ‘person’ towards a worker that the ‘person’ knew or reasonably ought to have known would cause that worker to be humiliated or intimidated.  A ‘person’ includes any individual, whether or not they are a workplace party. This means that a ‘person’ could be a workplace party such as an employer, supervisor, or co-worker, or a non workplace party such as a member of the public, a client, or anyone with whom a worker has contact at the workplace. 

In other words workplace harassment extends to a customer in a coffee shop who makes an “inappropriate comment” to a waiter; i.e. “You dumbass, you served me the wrong drink” said in a voice loud enough for other diners to hear thus causing the waiter to (quite reasonably) be humiliated. The struggling to survive restaurant owner will be liable.

The penalties under the Ontario Act are not minimal.  Every person who contravenes or fails to comply with “a provision of this Act” is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or to both.  If the culprit is Ma & Pa Corner Grocery Store Ltd. (and owners are made liable for the sins of employees) the maximum fine that may be imposed upon the corporation is $500,000.00. Bankrupted because the delivery boy told a bad joke. 

It is not surprising that waiting rooms in hospitals, government offices and other institutions are now littered with intimidating signs warning customers, patients and users of public services - in effect - not to complain too much.

Employers are made responsible for preventing so-called workplace harassment.   Because they can be blamed and usually will be blamed for worker on worker harassment (and the resultant liability), they must when considering potentially harassing conduct be as conservative as possible.  They must tell their workers not to say or do anything that can be remotely interpreted as unwelcome to anyone near or at work.  In particular they must forbid any mention of anything relating to sex.  They must  by necessity create a nervous, rule bound, joyless, sterile, unfree workplace.  Examples from the U.S. (even with its more objective criteria) illustrate this.  At the University of Nebraska at Lincoln, a harassment complaint was filed against a graduate student who had on his desk a 5" x 7" photograph of his wife in a bikini.  The employer ordered that the photo be removed.    At Penn State a professor complained that a print of Goya's Naked Maja hanging in a classroom constituted sexual harassment and accordingly the school administration removed the painting. 

Well intentioned governments are creating social environments where people are in constant fear of offending a colleague, where workers and bosses are constantly walking on eggshells, where the rights of overly sensitive individuals override the rights of everyone else, where casual, relaxed humour is outlawed ...   This is the new unfreedom of the 21st century.