Sticks and Stones May Break My Bones… but What About Words?
At work, how do we strike a balance between maintaining the autonomy of a person and preventing their words from causing harm?
In this day and age, where polarization dominates politics and social attitudes, while algorithms gleefully fan the flames, freedom of expression stands on precarious grounds. On one hand, in a democratic country, we believe in the importance of a marketplace of ideas and freedom from censorship. On the flip side, we are too familiar with the dangers of unrestricted speech — something our criminal laws define as hate speech. When we dive outside the reach of constitutional and criminal laws, we find ourselves in a wild, raging sea of words and forms of expression. In privately regulated workplaces, we wonder how free speech is and whether there should be limitations on what gets said inside or outside the office.
As we know, freedom of expression is a constitutional right guaranteed under Section 2(b) of the Canadian Charter of Rights and Freedoms, which protects the freedom of “thought, belief, opinion and expression.” The nature of a constitutional right, however, is that it governs only the relationship between the government and its people and does not apply to the private sphere.
Between the employer and the employee, B.C.’s Human Rights Code (the “Code”) and WorkSafeBC’s Occupational Health and Safety policies further limit speech, specifically to protect employees from discrimination, harassment and bullying at work. The employer has a positive duty to put in place policies regulating how employees treat each other to keep the workplace free from unwanted behaviour and a negative duty to refrain from conduct that is in breach of the law.
Specifically, the Code’s prohibition against discrimination based on political belief dovetails with the constitutional concept of freedom of expression. The Supreme Court of Canada in McCormick explains that "[t]he Code is quasi-constitutional legislation that attracts a generous interpretation to permit the achievement of its broad public purposes." Any belief or activity which engages with government action or public policy is captured under the Code’s definition of “political belief,” including the organization and governance of First Nations (Jamieson) and participation in matters affecting the regulation of one’s profession (Wali). In Bratzer, the Tribunal also includes the “when, where and in what manner” the beliefs are expressed. Note here the very fine distinction between the mode of expression protected by the Tribunal in Bratzer and the strategy pursued to advance a political goal not protected in Potter.
The deeper we go, the murkier the waters run. Beyond what is prescribed in our human rights and workplace safety laws, the employer retains significant power over its employees. How far those tentacles extend depends on whether an employee’s speech or conduct affects their employer’s business in a real and substantial way, usually coming to heads only when an employer disciplines or dismisses an employee for misconduct. For example, some employees realize far too late that speech is not free when their social media post contravenes company policies or business interests.
The question remains whether there should be limits to what we say and how we strike the appropriate balance between maintaining the autonomy of the person and preventing words from metastasizing into incalculable harm. Ultimately, legal restrictions on the freedom of expression are there to protect against such harm. The emotional and social damage caused by insensitive or impertinent comments at work are ripples in a larger sea, which affect our relationships with each other and the boundaries we maintain to stay sane in this world.
At the end of the day, we may very well heed advice from Thumper the rabbit in Disney’s Bambi, who said with some reluctance but much sympathy — “if you can’t say something nice, don’t say anything at all.”
