Inappropriate behaviour in the workplace can include offensive comments, bullying, unwanted sexual advances, discrimination, aggressive communications, threats and other conduct that makes an employee feel uncomfortable, intimidated or unsafe at work.
However, not every unpleasant interaction or disagreement at work is legally considered workplace harassment or discrimination. Understanding what inappropriate workplace behaviour means, when it may cross the line into harassment or discrimination, and how employees can report it can help workers understand their rights.
In Ontario, two important pieces of legislation addressing workplace conduct are the Ontario Human Rights Code (the “Code”) and the Occupational Health and Safety Act (the “OHSA”).
What Is Inappropriate Behaviour in the Workplace?
Inappropriate behaviour is a broad term that can describe conduct, comments or actions that are offensive, intimidating, discriminatory, harassing, threatening or otherwise unsuitable for the workplace.
Depending on the circumstances, inappropriate conduct may involve a co-worker, supervisor, manager, customer, client or another person an employee encounters through their work.
Inappropriate behaviour can also occur outside a traditional physical workplace. Ontario’s definition of workplace harassment includes conduct occurring virtually through the use of information and communications technology. This means workplace harassment can potentially occur through email, text messages, video calls, workplace messaging platforms and other forms of electronic communication.
Not all inappropriate behaviour will necessarily meet the legal definition of harassment or discrimination. Whether particular conduct gives rise to legal rights or remedies depends on the nature of the behaviour and the circumstances in which it occurred.
Examples of Inappropriate Behaviour in the Workplace
Examples of behaviour that may be inappropriate, concerning or threatening in the workplace include:
- Sending angry, aggressive or intimidating emails or messages;
- Making inappropriate comments about a co-worker on social media;
- Bullying or intimidating behaviour;
- Making abusive, insulting or offensive comments;
- Making inappropriate comments or jokes about an employee;
- Making unwanted sexual comments or advances;
- Displaying or sharing offensive or sexually explicit images or materials;
- Making discriminatory comments or jokes;
- Threatening a co-worker;
- Damaging property;
- Engaging in physical violence or threats of violence; and
- Other unwelcome behaviour that humiliates, intimidates or targets an employee.
The Ontario government’s Code of Practice to Address Workplace Harassment provides additional guidance on workplace harassment and the responsibilities of employers.
Whether inappropriate workplace behaviour amounts to harassment, discrimination or another legal issue depends on the particular circumstances.
What Is Inappropriate Conduct at Work?
“Inappropriate conduct” is another broad expression that may be used to describe behaviour that does not meet expected standards of workplace conduct.
It can range from inappropriate comments or communications to more serious conduct such as bullying, discrimination, sexual harassment, threats or violence.
There is an important distinction between behaviour that is simply unprofessional or inappropriate and conduct that violates an employee’s legal rights.
Under the Occupational Health and Safety Act, workplace harassment includes engaging in a course of vexatious comment or conduct against a worker in a workplace, including virtually through the use of information and communications technology, that is known or ought reasonably to be known to be unwelcome. The definition also includes workplace sexual harassment.
Inappropriate Comments in the Workplace
Inappropriate comments at work can range from unprofessional remarks to comments that may constitute harassment or discrimination.
Examples may include offensive jokes, sexual comments, repeated insulting remarks, discriminatory comments, or remarks intended to intimidate, demean or humiliate an employee.
The context, frequency and nature of the comments can all be relevant when determining whether inappropriate workplace comments may amount to harassment or discrimination.
The Ontario Human Rights Code
The Ontario Human Rights Code (the “Code”) provides employees with the right to equal treatment in employment without discrimination because of 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.
The Code also provides employees with a right to freedom from workplace harassment by an employer, an agent of the employer or another employee where the harassment is connected to protected grounds under the Code.
This is an important distinction. Inappropriate behaviour does not necessarily have to involve a protected human rights ground to potentially constitute workplace harassment under the OHSA. Human rights discrimination or harassment, however, involves treatment connected to a protected characteristic under the Human Rights Code.
If you have experienced harassment or discrimination in the workplace, you may have legal remedies available to you depending on the circumstances. The Ontario Human Rights Commission explains that remedies may include compensation for lost earnings or job opportunities and compensation for the impact of discrimination on a person’s dignity and self-worth. In appropriate circumstances, the Human Rights Tribunal of Ontario may also order that an employee be reinstated to their position.
Sexual Harassment in the Workplace
Some inappropriate workplace behaviour may constitute sexual harassment. Under the Occupational Health and Safety Act, workplace sexual harassment can include unwelcome comments or conduct against a worker because of sex, sexual orientation, gender identity or gender expression. It can also include certain unwelcome sexual solicitations or advances made by someone in a position to grant or deny a workplace benefit or advancement.
Examples of sexual harassment in the workplace may include unwanted sexual comments or advances, sexual jokes, inappropriate touching or other unwelcome sexualized behaviour.
For more information about employee rights, legal remedies and sexual harassment claims, read our page on sexual harassment in the workplace.
When Is Inappropriate Behaviour Not Workplace Harassment?
Not every difficult workplace interaction is harassment.
The OHSA specifically provides that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
Depending on the circumstances, reasonable management actions can include decisions relating to:
- Scheduling;
- Work assignments;
- Performance assessments or reviews;
- Workplace inspections;
- Health and safety measures; and
- Reasonable disciplinary action.
However, simply describing conduct as performance management or discipline does not necessarily determine whether all of the behaviour surrounding it was appropriate. The particular circumstances still matter.
Occupational Health and Safety Act
It is important that you report instances of workplace harassment or discrimination as soon as you are able. Under section 32.0.7 of the Occupational Health and Safety Act (the “OHSA”), an employer must ensure that an investigation appropriate in the circumstances is conducted into incidents and complaints of workplace harassment.
Ontario’s workplace harassment investigation guidance states that an appropriate workplace harassment investigation should be prompt, objective, confidential and thorough:
- Prompt: The investigation should be conducted as soon as possible. Ontario’s guidance states that investigations should ideally be completed within 90 days or less unless there is a compelling reason why a longer investigation is needed.
- Objective: The person conducting the investigation must be able to conduct a fair and impartial investigation. The investigator should not be someone involved in the incident or complaint or someone who would be unable to provide an objective assessment of the allegations.
- Confidential: Information about an incident or complaint of workplace harassment, including identifying information about the individuals involved, should generally not be disclosed unless disclosure is necessary to investigate the complaint or incident, take corrective action or is otherwise required by law.
- Thorough: An appropriate investigation should gather and review the information relevant to the complaint. Depending on the circumstances, this may include interviewing the worker who allegedly experienced the harassment, the alleged harasser and relevant witnesses, and reviewing relevant documents or other evidence.
Following the investigation, the worker who allegedly experienced workplace harassment and the alleged harasser, if that person is also a worker of the employer, must be informed in writing of the results of the investigation and of any corrective action that has been or will be taken.
The results of the investigation are not the same as the complete investigation report. Ontario’s Code of Practice to Address Workplace Harassment describes the results as a summary of the findings of the investigation.
Reporting Inappropriate Behaviour at Work
If you experience inappropriate behaviour at work, the appropriate response will depend on the nature and seriousness of the conduct.
Some steps that may help include:
- Speak up when appropriate: If you feel safe and comfortable doing so, you may tell the person that their behaviour is unwelcome and ask them to stop. However, an employee should not assume that they are required to confront someone directly before reporting serious, threatening or harassing behaviour.
- Do your research: Familiarize yourself with your employer’s workplace harassment, discrimination, violence and professional conduct policies. Knowing your employer’s procedures can help you understand how and to whom a complaint should be made.
- Document everything: Keep a record of relevant incidents, including dates, times, locations, what occurred and who was present. Preserve relevant emails, text messages or other communications where appropriate.
- Report the behaviour: Depending on your workplace, concerns may be reported to a supervisor, manager, human resources department or another person identified in the employer’s workplace harassment program.
Under the OHSA, employers are required to develop and maintain a written workplace harassment program. The program must include measures and procedures for workers to report incidents or complaints of workplace harassment. It must also provide a way to report an incident to someone other than the employer or supervisor if the employer or supervisor is the alleged harasser.
What Should You Do If a Co-worker Makes You Uncomfortable?
If a co-worker’s behaviour makes you uncomfortable, consider documenting what occurred and reviewing your employer’s workplace policies and reporting procedures.
If the conduct is serious, ongoing or affecting your employment, you may also wish to obtain legal advice from an employment lawyer about your rights and options.
Employees should be particularly cautious about resigning because of inappropriate workplace behaviour without first understanding how resignation could affect their legal rights.
Can Inappropriate Workplace Behaviour Lead to Constructive Dismissal?
In some circumstances, serious or persistent workplace conduct may contribute to a poisoned work environment or raise issues relating to constructive dismissal.
Whether an employee has been constructively dismissed is highly dependent on the particular facts. Employees considering leaving their job because of serious workplace conduct should consider obtaining legal advice before resigning.
Workplace Violence and Threatening Behaviour
Some inappropriate conduct may go beyond workplace harassment and constitute workplace violence.
The Occupational Health and Safety Act defines workplace violence to include the exercise or attempted exercise of physical force against a worker that causes or could cause physical injury. It also includes statements or behaviour that a worker could reasonably interpret as a threat to exercise physical force that could cause physical injury.
Serious threats, physical assault or other potentially criminal behaviour may also warrant police involvement. Employees who believe they are in immediate danger should prioritize their safety and contact emergency services where appropriate.
In Summary
Inappropriate behaviour in the workplace can range from unprofessional comments or conduct to workplace harassment, discrimination, sexual harassment or violence.
Employees who experience inappropriate behaviour should document relevant incidents, review their employer’s workplace policies and understand the procedures available for reporting workplace concerns.
If you are a non-unionized employee experiencing workplace harassment, discrimination or other serious inappropriate behaviour at work, Monkhouse Law Employment Lawyers can help you understand your legal rights and options. Contact us for a free 30 minute phone consultation.