"It is easier to be critical than correct." – Benjamin Disraeli
Today, much of the workforce views itself as being bullied or harassed, often for good reason.
However, as harassment is often in the eye of the beholder, many companies have become complacent, satisfied to have employees police themselves. As a recent Ontario case illustrates, to do so flirts with a significant lawsuit.
Douglas Disotel was no stranger to Kraft Canada’s disciplinary policies. Disotel, a whey dryer operator at Kraft’s cheese factory in Ingleside, Ontario, had a run-in with a manager after he was caught gossiping about the manager’s former wife. Disotel disagreed with being disciplined, believing that Kraft sided with his manager in a non-workplace dispute.
Soon afterwards, Disotel’s coworkers began razzing him, asking if he was involved in a sexual relationship with his manager and questioning his sexual orientation. Disotel complained to his supervisor on several occasions, but instead of reporting the conduct to Kraft’s human resources department, the supervisor told him the comments would stop if he didn’t react to them.
Fed up with his supervisor’s lack of response to his concerns, Disotel retained a lawyer and told his supervisor he was contemplating filing a harassment complaint. Disotel was told that a complaint could lead to his termination. Believing that Kraft would not fairly investigate the situation, Disotel went on sick leave and never returned. He eventually sued Kraft, claiming that he had effectively been fired.
At a recent trial, the judge sided with Disotel, agreeing that he had effectively been fired and criticizing Kraft’s handling of the matter. Although Kraft performed an investigation, it fell far short of the standards required for it to be fair. Kraft did not interview a number of witnesses and drew conclusions, which led the judge to believe the company was not impartial to Disotel’s complaint. Disotel was awarded one year’s severance and his legal costs.
The human resources lessons are clear: No workplace complaint, however trivial, should be ignored by management. Further, although harassment is in the eyes of the beholder, employees should not fear reprisal for raising their concerns. Often, the judge sees it the same way.
Daniel A. Lublin is an employment lawyer Whitten & Lublin LLP. He can be contacted at firstname.lastname@example.org.