Conflict in the Middle East has placed expressions of racial and religious hatred back on the front page. Employers in the construction industry must be prepared in advance and ready to respond to any verbal harassment or display of hate symbols.
Hate symbols have caused concern and reaction both in Canada and the United States. In the U.S., Amazon and its contractors are now being sued by five Black and Latino workers for failing to take appropriate action preventing the placement of eight nooses on an Amazon worksite in 2021.
In Canada, nooses were found on two worksites in the Toronto area in 2020. One was at a hospital construction site operated by EllisDon. The other was at a highrise residential project being built for The Daniels Corporation.
A recent Supreme Court of Canada appeal ruling has expanded the term “employer” under Occupational Health and Safety (OHSA) legislation. That means it now has application beyond constructors and can potentially include project owners.
Every person employed in Canada has the right to a safe work environment. Expressions of hate go beyond any physical display of symbols like nooses and swastikas to include verbal harassment or threats of violence.
Sweeping matters under the carpet could invite OHSA charges. The strength of employee safety measures taken by the “employer” in advance of an incident could come into play as part of any due diligence defence in response to being charged under OHSA by a provincial labour ministry.
“There are minimum requirements under the OHSA, regarding workplace harassment, violence and bullying,” Tushar Anandasagar, associate with Gowling WLG, told the Daily Commercial News. “The OHSA requires a company to implement functional and effective violence and harassment prevention programs. A company failing to do this runs the risk of breaching the OHSA and being penalized for doing so.
“At a minimum, employers should ensure their training regimen is up-to-date and compliant with applicable law,” Anandasagar continued. “Refresher training should be conducted frequently for existing staff and at any point when a new staff member joins the workforce.”
A strong employee manual outlining the company’s anti-harassment policy should be in their hands, explaining the disciplinary actions, including dismissal, if an employee is found in breach.
Another step to be considered are video cameras onsite operating 24/7, but only if matters related to their placement can be allayed.
“Cameras are a hot-button issue, particularly in unionized workplaces,” Anandasagar said. “There are complex privacy and disclosure considerations to consider, including the requirement to establish an Electronic Monitoring Policy.”
He suggested legal advice be obtained before installing video surveillance at the workplace.If an incident does take place, action must follow.
“No two cases are the same. There are too many variables to consider,” Anandasagar said. “Management’s response needs to be flexible and the company should be prepared to adapt its strategic response on the fly.”
However, it would be prudent to notify authorities immediately if there appeared to be an imminent risk of harm to a worker or a risk to security, he said.
In large workplace settings like construction sites, particularly if knowledge of the incident is widespread, he suggests the employer should be aware its responsibilities both to its staff and to other stakeholders.
That includes the public. After all, the corporate reputation is at stake. Aside from investigating and taking decisive action to contain the issue, a public acknowledgement and condemnation of the hate symbols, violent threats or conduct may be prudent.
In EllisDon’s case, the company released an open letter outlining the numerous steps it was taking. Many would be considered appropriate, at a minimum. These included working with law enforcement to identify those responsible for displaying the nooses, conducting “a full and independent investigation,” improving employee diversity training, and engaging in trauma specialists “to provide immediate mental health support and guidance.”
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to email@example.com.