Howard Levitt: Why fear has come to define workplace culture

In 2025, fear became one of the most significant employment-law realities companies face.In 2025, fear became one of the most significant employment-law realities companies face. Photo by Getty Images/iStockphoto

Article content

Employers have quietly developed a new workplace reflex.

Article content

The moment an employee raises the slightest hint of a human rights complaint or reprisal, many employers stop managing. Discipline stalls. Performance oversight slows to a crawl. Termination decisions postponed or abandoned. Not because the facts changed, but because the risk profile did.

Article content

Article content

In 2025, fear became one of the most significant employment-law realities companies face. And it will define workplace culture going forward.

Article content

Article content

Human rights protections are vital. They shield people from discrimination based on race, disability, age, creed and other listed grounds. They correct real power imbalances in employment. They matter.

Article content

Article content

But, in practice, the system has become too simple to access and hard to exit. Complaints are easy to file. Tribunals are slow to dispose of weak claims. Costs of defending legitimate decisions can exceed the cost of settling. The result is a predictable incentive. Many employers do not defend claims because it is uneconomic to do so.

Article content

That is not justice. It is risk avoidance.

Article content

The consequence is a shift in workplace behaviour. Performance management and discipline are routinely framed as discriminatory acts. Misconduct masked as harassment or bias. Termination decisions reframed as retaliation.

Article content

Part of the challenge is the structural imbalance in the human rights regime. Applicants have little downside risk when they file. Costs are not awarded against them. Early dismissal is uncommon.

Article content

Employers, by contrast, face immediate expense, disruption and reputational risk long before the merits are tested.

Article content

Article content

A similar dynamic exists in reprisal claims under provincial labour and employment statutes.

Article content

Article content

A reprisal complaint is not a human rights claim. A reprisal claim alleges that the employer retaliated against an employee for exercising a legal right. It could be a complaint about unpaid statutory entitlements, a health and safety issue or another statutory right. The legal test is not discrimination. It is retaliation for asserting a right.

Article content

In practice, reprisal claims often turn on timing. If an employee raises a complaint and then discipline follows, even where the employer has longstanding documentation of misconduct, the complainant argues causation. The matter proceeds to a hearing. Employers are pulled into litigation because of proximity, not proof.

Article content

We have defended employers in reprisal cases where the evidence overwhelmingly supported the employer’s actions, yet the case proceeded because the complaint occurred shortly before or at the time of termination. The employers ultimately prevailed but only after significant cost and disruption. That is the real world, not theoretical risk.