Sara Mojtehedzadeh Toronto Star
The Toronto Star Jan. 6, 2019
The presence of “pin-up girls and scantily clad models” throughout a workplace is “unprofessional,” but is not bullying or harassment.
The use of “sexually explicit language” to and about “women and alternative lifestyles” on the job is “inappropriate,” but is not bullying or harassment.
Misogynistic comments about “having to work with women” are “upsetting,” but are not bullying or harassment.
Being physically swarmed by members of the public and called a dyke on the job are “unwelcome” behaviours, but are not bullying or harassment.
And none of it is grounds for a worker diagnosed with anxiety, depression, and post-traumatic stress to win a chronic mental stress claim, according to a recent decision by the Workplace Safety and Insurance Board.
“I’m actually, I guess, shocked more than anything.
“Not by the fact they denied it. But the language they used to excuse it all is, in this day and age, I find that really shocking,” said Margery Wardle, a former heavy equipment operator whose case was shut down by the board last month.
“They don’t try and pretend that it didn’t happen. They just dismissed it.”
While the decision seen by the Star does not dispute Wardle’s experiences on the job, it says her “stress appears to be in response to interpersonal conflict,” which is not covered by the board’s chronic mental stress policy.
“Interpersonal conflict is a typical feature of normal employment and is generally not considered to be a substantial work-related stressor,” the decision reads. In a statement to the Star, board spokesperson Christine Arnott said the WSIB wanted “anyone dealing with work-related chronic mental stress (CMS) to get the help and support they need.”
The policy, which took effect last year, extends benefits coverage to cases where employees experience a “substantial work-related stressor” and abusive workplace behaviour that rises to the level of workplace harassment.
Under the policy, workers are not entitled to chronic stress compensation for “typical features” of employment, including problems stemming from discipline, demotions, transfers or termination.
“When we look at these claims, we have to consider all facts and circumstances surrounding the events and allegations, including any actions the employer has taken to address the issues,” Arnott said.
“The definition of harassment that guides our decisions, and is included in our CMS policy, is consistent with the Occupational Health & Safety Act (OHSA) and guidance from the Ontario Human Rights Commission.”
Wardle’s lawyer, Laura Lunansky of the Toronto-based legal clinic Injured Worker Consultants, was “surprised” by the board’s decision.
“And not very much surprises me anymore about decisions,” she said.
“It was surprising because on its face, it doesn’t make sense in a way that I think shows a complete lack of understanding of the human rights code, and of what a toxic workplace might look like,” Lunansky added.
“You have comments that I think any reasonable person would recognize are evidence of discrimination on the basis of sex and sexual orientation.”
Wardle’s claim dates back to the mid ’90s when she began working in public works for the City of Nepean. As one of the only women in the workplace, she was repeatedly subjected to sexually explicit comments, references to her sexuality, pornographic material in the workplace, and physical harassment and intimidation, including being grabbed and followed into the women’s washrooms, according to her claim.
The tipping point was being “swarmed and verbally attacked” by members of the public while working at a hockey arena in 2002, after which she went on sick leave and was subsequently diagnosed with anxiety, depression and post-traumatic stress disorder.
According to the WSIB’s decision, Wardle’s concerns with her workplace were not reported to her employer until she was hired into a permanent position, and a subsequent investigation found a “healthy workplace free of harassment.”
Wardle said she repeatedly raised her concerns with management, who initially took some steps to address the problems. But when Nepean amalgamated with the City of Ottawa, she said that layer of management disappeared and some of her harassers received promotions.
“That’s when the retaliation started,” she said. “I did try and return to work, but that didn’t last long because the behaviour just intensified.”
The sexually explicit behaviour, misogynistic and derogatory comments she experienced did not constitute sexual or verbal harassment, the WSIB’s decision said. As for being repeatedly followed into the women’s washroom, the decision said her employer “noted that the women’s restrooms were used by the male staff out of convenience of location.”
“While Ms. Wardle reports recurrent physical harassment and intimidation by her co-workers, I find the incidents of blocking her path of travel and bumping her on the stairs do not provide evidence of abusive or harassing behaviour,” it adds.
Critics have already warned that the acceptance criteria for chronic mental stress claims are too narrow. Workers filing for chronic mental stress, for example, must prove their workplace was the “predominant cause” of their illness – while workers with physical injuries must simply show their workplace was a significant contributing factor.
As first reported by the Star, an internal WSIB audit shows that 94 per cent of chronic mental stress claims between January and May were denied.
Previously, workers could only seek compensation for mental health injuries caused by a traumatic incident, not those triggered by ongoing harassment or trauma in their workplace – which labour advocates and legal experts described in a 2016 ombudsman complaint as unconstitutional and discriminatory. Following legislative reforms, the board subsequently changed its policy to allow chronic mental stress claims.
Initially, the new policy only covered claims from January 2018. It was amended to allow retroactive claims following a lawsuit involving Wardle’s case, launched by prominent Toronto-based labour law firm Goldblatt Partners.
Wardle and Lunansky plan to appeal the recently denied claim.
“The (chronic mental stress) policy is flawed, we know that and we will challenge that,” said Lunansky.
“But even within the policy, this should have been allowed because it’s just patently a case of harassment and a poisonous work environment and incidents that go way beyond interpersonal conflict.”
Ontario’s human rights code prohibits harassment – or unwelcome comments and conduct that are offensive, embarrassing, humiliating, demeaning or sexualized – as well as the creation of a “poisonous environment,” which is considered a form of discrimination.
Wardle said she contacted the Ontario Human Rights Commission while she was still working and was told the incidents she described were “sexual harassment and it should not be happening in my workplace.”
“My career is gone now, a career I loved. I was really proud of what I did for a living. Losing that has been a tremendous loss,” Wardle said.
“So I figure at this point I might as well keep on fighting. This is what I’m left with.”