By Sarah Niman
Earlier this year, an Australian woman’s TikTok went viral when she quit her high-status corporate job as a literal rejection of toxic workplace conditions. Viewers can watch a montage of her desk-crying before she announces that she quit, captioning the video “Dobby is free,” a reference to the Harry Potter character who was an indentured servant to a cruel family.
This video’s immediate and widespread popularity reflects the ways people feel trapped in oppressive work environments. But when does feeling trapped translate to a genuine concern to investigate? And where is the line between oppressive and toxic?
TLDR: If you are being harassed or otherwise treated badly based on a ground protected by human rights law, your workplace might be toxic.
As workplace investigators, we are often called to get to the bottom of toxic workplace allegations. Sometimes these allegations lead us to find that employers have created or allowed conduct that has ‘poisoned’ the workplace, the legal term for a toxic workplace. Ontario’s human rights tribunals have set a high bar for which workplaces are so toxic that they require employers to pay money to their employees (or, more likely, their former employees).
That’s because in Ontario (and all other provinces and territories), human rights laws protect workers from discrimination and harassment in their workplace, based on their race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Harassment can also make your workplace toxic. Ontario’s human rights law describes harassment as repeated vexatious (mean-spirited) comments or conduct that the person knows (or should know) are unwelcome.
Any employee can allege that they work in a poisoned workplace, not just the employee targeted by discrimination or harassment.
So, if an employer is accused of having a ‘toxic workplace’, what Ontario investigators are being asked to uncover is whether the conduct, comments and omissions are harassment, or discrimination. This distinguishes the employer who expects you to work long hours and weekends on a big project (not a poisoned workplace) from a manager who allows employees to use racial slurs that repeatedly offend a racialized employee (poisoned workplace).
In other words, whether a workplace is toxic is not answered by a vibe check, nor the number of times you have cried at your desk (and regardless of whether you filmed it for TikTok content); It’s a legal test. The Ontario Superior Court affirmed this standard in a case called Crêpe It Up! v Hamilton: A workplace can be ‘poisoned’ by either one very serious incident or a series of incidents that create a hostile or intolerable workplace.
Here are some examples:
- In Matheus v McCann, an employer’s mean-spirited, unwanted, race-based comments over a five-month period poisoned the workplace because the comments were so unrelenting, they became a regular condition of the workplace.
- The defendant in McWilliam v Toronto Police Services Board poisoned a female police officer’s work environment by allowing sexual harassment comments, despite those comments being intended as lighthearted jokes. Since she was one of few female officers, and the people making the comments were often higher-ranking male officers, the comments seriously affected her and poisoned her workplace.
- It will come as no surprise that secretly photographing a coworker’s genitalia while they use the washroom, and then circulating those photos among coworkers, forms a poisoned work environment, as was the case in Xu v Quality Meat Packers Ltd.
- A driver was subjected to decades of racist and homophobic remarks starting from his direct boss, the company president, and then by the wider workforce in Qubti v Reprodux Ltd.
- An employer who ignored many complaints about anti-black discrimination (including racial slurs and references to slavery) created a poisoned work environment for a black employee, in Smith v Mardana Ltd.
As investigators, we apply the legal standards developed through cases like these to explore the concerning discriminatory comments or incidents, their nature, and their seriousness. This work is complex and nuanced, because context informs everything: As we saw in McWilliam, lighthearted jokes can be sexist and toxic depending on whether the people making them are men who hold positions of power over the few females who find them offensive. The same comments may just be bad jokes in poor taste without those same power and gender dynamics at play. To tease out these nuances, investigators will likely conduct in-depth interviews, review staff communications, and read the workplace’s policies.
Some organizations develop their own workplace harassment and discrimination policies because poisoned work environments negatively impact productivity, communication and employee retention.
Investigators gather all this context evidence together to help find whether the discriminatory conduct rises to the level of a poisoned workplace, or not.
Once found, the employer typically pays money to the affected employees (or former employees). This penalty is meant to remedy the harm to the affected person or people, and to motivate employers to make systemic changes to provide workplaces without discrimination and harassment for its employees.
