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WorkPlace Harrassment & Discrimination

Discussion in 'Discrimination & Sexual Harassment' started by Wolfmann, Jan 1, 2005.

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  1. Wolfmann

    Wolfmann Law Topic Starter New Member

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    I'll try and keep this brief as it's a complicated situation. Please feel free to ask for clarifications.

    Last year my wife went to work for a new employer in a part-time status in June of 2003. She's fully qualified, has 5+ years of industry experience, has been a supervisor in her previous job. She received an excellent probationary period (90 day) performance review and about a month afterward she was promoted to a dual-rate supervisory position, but was told she would not be given full-time despite it being posted as a full-time position and at the other properties (there are 22 in total) all supervisory classed jobs are full-time positions.

    During this process she became pregnant and felt she could trust her manager, as her manager is a direct friend of her mother and step-father's, and when asked how much time she was taking off my wife replied 6 months. Her pregnancy created several complications: 1) she could not perform her duties to her fullest capabilities and 2) she was on restrictions given to her by her doctor because of a suspected miscarriage at week 6. They were not unreasonable. She is a house keeper. Her employer acknowledged her restrictions and did make an attempt to accomodate her, but her manager's attitude toward her changed. None of her supervisor's respected my wife's restrictions, in fact they seemed oblivious to them. One of her supervisor's pulled her into private and then informed her that several of her co-workers were complaining about her restrictions, and he made a comment about them to her that left her feeling devastated. My wife's mother later said to my wife that the manager had confided to her that she didn't have a problem with one of the restrictions, but the rest she didn't like, and that because when she herself had been pregnant her doctor had taken her off work. She then also confided to her mother she instructed my wife's supervisor to treat her like any other employee, thus invalidating her restrictions. My wife complained formally about the supervisor, her co-worker's comments and the manager said she would speak to the members, but nothing was done about it. Human Resources was not contacted and there were no attempts to resolve the issue communally.

    Eventually a fulltime competition was posted, which my wife applied for. By their own admission of the qualifications for the position my wife exceeded the qualifications, and she was next in line to be promoted. There is a consistent history of promoting due to seniority. About a week or so before the interviews my wife had a personal conversation with a co-worker who stated she felt my wife didn't stand a chance to be promoted because of things that were being said, and some things that her manager had disclosed to this co-worker. My wife defended herself and basically told her that if they wanted to play politics they could, but she had the qualifications to be promoted, she was in line to be promoted, there were no performance or discipline issues, and if she was no promoted she could live with that but they would have to justify their decision. The co-worker, who was in competition with my wife, then told the manager that my wife was being boastful, arrogant, and that my wife had said there would be hell to pay if she didn't get promoted. The furthest could be from the truth.

    When the time to award the promotion came up two assocaites were selected, the person directly in line seniority, and the person just below my wife (the co-worker). The manager and her assistant called my wife in the day before they awarded it to tell her. They could not give her any specific reason, just that the manager had felt her performance was not up to par from her first month (despite signing off and approving her excellent performance review) and that she felt she wasn't a good worker. When my wife asked them for documentation, performance or discipline issues, or anything that they could justify their determination they could not come up with anything.

    A meeting with human resources that we attended - I am representing my wife in this matter - and they gave us four reasons. One of the main things was her "Attitude"...they brought up situations where my wife had actually be the victim. The other reasons were laughable at best. In subsequent correspondence with the corporation at the executive level they changed their tune and stated her performance was not up to par and her actions with her co-workers were unprofessional. Yet they could not provide any specifics.

    My wife started have further complications directly related to stress from these incidences, as well as from the situation and her doctor recommended she go off work in February of this year. She was not due until June. She's lost a lot of wages, plus her sick benefits and guaranteed maternity leave top up had she been instated as full-time.

    I've condensed a lot there. The problem I'm facing representing her right now is gaining access and contact. They do not wish to acknowledge there is a problem, was a problem, and I prepared a 35 page legal brief of the situation, which included our documented evidence, and their ridiculous correspondence. There were witnesses, but some of them are management witnesses, and the manager herself has a history of being a bully. She is literally a yeller and screamer and intimidator. We cannot get at these witnesses, though Julie has named specific persons in her complaint. It's frustrating because as stupid as this management has acted, they have removed her site access privileges and have not contacted her with employment information or news, as they should under the Employment Act.

    The issue is before the Human Rights Commission of Ontario, and we have recommended mediation, however I would like to know what specifically I should be looking. The commission sees the problem but it has a been a laborious process.

    I honestly believe that her manager could not afford to have her take time off. My wife's reputation was consistently damaged by complaints against her by co-workers that were never addressed by her manager, and the successful employee later confided to another employee that she felt bad for saying what had said to the manager (the manager acknowledged they had a conversation, in fact confronted my wife about what the employee had said). That, for me, was really the motivation point. My wife was ready to accept a denial, in fact she had prepared herself for it, but when these situation happened and they then decided to fabricate reasons to not give it to her she was devastated.

    In Mediation I feel she has a right to have these issues resolved:

    1) Harrassment by her co-workers, including defamatory comments made to her manager by her co-workers, and the supervisor.

    2) Promotion to full-time effective original promotion date

    3) A formal apology from the Executive of the corporation as well as the site management.

    4) Back pay to that date, including benefits.

    5) Review of their internal processes dealing with harrassment and discrimination.

    or,

    In lieu of her continued employment a settlement of $250,000 plus legal fees. Case law up here in Canada has put that as a common settlement fee over employment issues where the employer is at fault. But it usually comes from wrongful dismissal. My wife hasn't been dismissed, but in a way I kinda wish she was.

    I know I'm dreaming, but she makes a pretty compelling case when you look at her documentation. The problem is the lack of witness participation. We just can't get access to them.

    So what do you think?

    I don't have a problem with the mediation part, because effectively if we can't resolve the issue then it will just be referred for investigation. Then the corporation will have to really justify themselves, and the investigator will gain full access and disclosure under the human rights laws.
     
  2. charlesesq

    charlesesq New Member

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    I'm very sorry to hear about your wife's case. I took a quick perusal of your case and to be completely honest I have no idea what wrong your complaint is based upon.

    (1) If you are claiming harrassment, I didn't notice any mentionable harrassment that I can recall at all, just some words and differences of opinion that may have been a little testy at most.

    (2) Are you claiming that your wife was discriminated against because she was a pregnant woman, i.e. your wife should have been promoted instead of someone else who is less worthy based upon reasonable justification? Are others being discriminated against/harrassed or is it only your wife? Is there some type of Canadian law that provides the requirement of merit promotion upon which you are basing your case?

    (3) I recognize that I'm not seeing the huge brief, but unless you have some proof or pattern of wrongdoing, I'd say that your chances of seeing some remedy are small at best. I'm reading what you wrote and getting the feeling that there may have been some resentment due to your wife having special treatment for a period of time. Has this been the root of problems or an inability for the other workers to get along with her? Perhaps, I don't know. I think you need to put down solid examples of real harrassment and discrimination that would be at least a little jolting to the average person or else there is precious little here. I certainly wouldn't send your demands at this point knowing only what I am reading.
     
  3. Wolfmann

    Wolfmann Law Topic Starter New Member

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    The Human Rights Commission of Ontario saw sufficient grounds to accept her case, but all I'm really looking for is leverage advice during mediation: what can we realistically look for, ask for, and any specific strategies I could use.

    ~~~~~~~~~~~~~~~~~~~~~~~
    (1) If you are claiming harrassment, I didn't notice any mentionable harrassment that I can recall at all, just some words and differences of opinion that may have been a little testy at most.
    ~~~~~~~~~~~~~~~~~~~~~~

    I can't be very specific as I do not want to prejudice the case, but there was some very specific comments made to her by her supervision about her pregnancy and her work habits because of her pregnancy. Her manager failed to follow-up and document any of my wife's complaints, and told her point blank, "It's your fault." When it very clearly wasn't.

    One of her fellow co-workers also fabricated information about her and told her manager, which her manager acknowledged. And her manager's attitude toward her changed after my wife made formal complaints. In that regard, one of the issues my wife has is that her manager, who is a friend of the family, never even spoke with her or confronted her about what anyone has said or complained to her about. Her manager, as quoted by a witness, said, "She has restrictions, I can work with them, but I don't believe them. I only accept the one restriction." In the same conversation she also admitted to saying to one of my wife's supervisors that she was to be treated like a normal employee, thus invalidating her restrictions.

    It's no wonder, with an attitude like that, my wife had so many problems.


    ~~~~~~~~~~~~~~~~~~~~~~~
    (2) Are you claiming that your wife was discriminated against because she was a pregnant woman, i.e. your wife should have been promoted instead of someone else who is less worthy based upon reasonable justification? Are others being discriminated against/harrassed or is it only your wife? Is there some type of Canadian law that provides the requirement of merit promotion upon which you are basing your case?
    ~~~~~~~~~~~~~~~~~~~~~~~

    They established in a letter the criterion for promotion. Which she qualified for. The successful candidate to best of my wife's knowledge did not qualify for reasons I won't mention here, but there was written documentation signed by my wife well before any of this happened as part of my wife's normal duties, plus junior seniority. Her manager stated very specifically her performance was poor after she was pregnant, but could not provide any specific examples. There were no disciplinary issues, and the reasons they could furnish were quite obviously in support of my wife (any reasonable person would look at the situation and understand my wife handled the situations properly) but her manager tried to justify that my wife's attitude was to blame. Because there is nothing specific, except in cases where it is, all we are left to believe is that it is simply a compounding factor because she was pregnant.

    She never had any of these issues before her pregnancy, only had one issue with two employees after her promotion.

    There are other issues of discrimination and harrassment by this manager, but up until this point no one has taken the effort to stand up to her. This manager runs her department without understanding the fundamental rules of management: cover your ass. She's walked over anyone in the ranks she's come up against to be where she is and is of the attitude she can do what she pleases without accountability. How she tried to intimidate and twist certain situations against my wife is proof enough of her vindictive personality. Unfortunately, we do not have contact or access to the witnesses as my wife's access to her employer has been cut off.




    ~~~~~~~~~~~~~~~~~~~~~~~
    I recognize that I'm not seeing the huge brief, but unless you have some proof or pattern of wrongdoing,
    ~~~~~~~~~~~~~~~~~~~~~~~

    I would love to send the full brief if you are a lawyer. It would be a moot point anyway. My biggest issue is lack of access to witnesses, and even a lack of witnesses in the most severe of the harrassment issues.

    This is what I do have:

    1) 4 incidents of very specific behavior and comments. Two of them even relate to each other as one confirmed that the motivations of the other were due to my wife being pregnant.

    My wife is well qualified to do her job, and has a lot of experience. When she came in she beat out people for her position within 4 months others that had been there for 5 years or more, who clearly were not as qualified. Then when she became pregnant, it seemed to exarcerbate the problems my wife had dealing with the difficult employees...they totally turned on her.

    Otherwise my wife's tenure was fine...she gets along well with her co-workers, is a very hard worker, and understands a lot of fundamental issues of leadership that even her management seem to not understand - it's instinctual to her. She's a motivator and a leader, so in a way maybe she didn't help herself out with those that took exception to her.

    But she followed management's policies, and did what she needed to do when she needed to do it. And in the end they decided to side against her, even when she brought up issues and made complaints.
     
  4. Wolfmann

    Wolfmann Law Topic Starter New Member

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    Is there any place that I can get caselaw on workplace discrimination and harrassment issues, settlements, and awards that I can use to do my homework on this and prepare for mediation?

    I have some human rights case-law, but nothing that directly relates to workplace harrassment and discrimination.
     
  5. BDudzinski

    BDudzinski New Member

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    Is this harrassment?

    Where do I begin? I was hired into a position which required myself to relocate, upon my arrival to this job the General Manager looked at my experence and became intimmidated by my resume. She became worried that the front office was after her job by hiring me, after that things became very uneasy for me at work. I was acussed of stealing money, even on days in which I did not work, if money came up missing it was my fault. I was acussed of comming to work smelling like pot, I was suspended for three days without pay for "and I quote" for having a" click" of friends, When a problem comes up, I am to blame, the rules in our work place always seem to change after I have done a job, change so I am the one at fault. My personal file at work is littered with opinion, I think he is doing this or that kind of thing. She has approched female co-workers and asked if I have sexually harrassed them in any way, I have been acussed of downloading and printing porn at work, All of the information regarding me is past secondhand to her where in turn it is pasted off as fact to my main boss. and much more. I have done none of these things which I have been acused of. I just want to do my job. Also what can I do to prepare myself if this does take the form of a lawsuit.
     
  6. BDudzinski

    BDudzinski New Member

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    Is this harrassment?

    I do not understand the law regarding this so please help me if you can
     
  7. Wolfmann

    Wolfmann Law Topic Starter New Member

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    Are you in a position of trust with this money where you may be responsible for it regardless of your presence?

    You were suspended for smelling like pot or having friends?

    You should be able to get a list of policies before and after and do a comparative analysis. Was it due to legitimate business issues where you may just have been in the firing line (ie responsible), or were they arbitrary and spiteful changes that did not support the business objectives?

    In a Canadian jurisdiction your file cannot, or should not, have anything it you did not acknowledge (any communications from you, or anything with your signature on it). Some employers keep shadow files for legitimate reasons, but the official file that H.R. keeps is the one that counts against your employment.

    A manager is allowed to enter opinion if they can prove it with some sort of verifiable fact. But it must related to the topic or issue and cannot be conjecture, supposition, or rhetoric. It has to be grounded in fact that is easy to verify. An example would be...

    "Mr. Bloggins left the rear entrance to the office unlocked over night and it is my belief this directly contributed to the break and enter that occurred where $50,000 worth of inventory was damaged and/or stolen."



    This is harrassment and you should speak to your co-workers if they would be willing to put that in writing.

    I'd take this up with Human Resources and complain. Ask to see your personnel file. Take out anything in it that you do not acknowledge, have no acknowledge, and challenge them on it.

    I'd only venture into a lawsuit if you have documented proof that shows a very clear picture. Eg. keep a journal of day to day happenings that have a date and time and show a history of entry. In the above situation as soon as my wife started getting flak I told her write down dates and times, witnesses...everything she could, and then from there on keep a small notebook she could scribble entries in to. Even the smallest comment right down verbatim.

    If you complain don't expect the complaint to go much further if you cannot provide specifics. Names, dates, times, witnesses...it's pretty hard for a manager or director to smooth things over as a petty squabble if they have a chronology of events that show that you have been harrassed and worked over.

    In this case, hopefully, H.R. will take your complaint seriously and challenge your manager. Just don't expect H.R. to have much sympathy...they deal with this stuff all the time, and they are still representatives of management, not the employees.
     

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