Curiosity Culture and Employment Law: Navigating Legal Challenges in the Workplace
As workplaces evolve, many organizations in Ontario are embracing a “curiosity culture” that promotes exploration, innovation, and open communication. While fostering a curious environment can lead to greater creativity and employee engagement, it also introduces a host of legal challenges that employers must navigate.
Lawsuits, such as the one filed by Jessica Combs against Netflix in California[i], exemplify the legal challenges that arise. In that case, Ms. Combs, a former employee, alleged that Netflix's workplace culture, specifically its "curiosity culture," created a hostile work environment because its emphasis on radical transparency and open debate permitted inappropriate discussion about employees’ personal and professional lives. These discussions resulted in a lack of support and respect for employees which, Ms. Combs alleges, ultimately led to her wrongful termination.
In this blog, I’ll explore the potential legal pitfalls associated with curiosity culture and offer tips for mitigating these risks.
Understanding Curiosity Culture
Curiosity culture encourages employees to ask questions, explore new ideas, and challenge the status quo. This can lead to increased job satisfaction and innovation. However, without proper guidelines and structures, curiosity between employees can also result in legal complications, particularly in areas such as workplace harassment, intellectual property, and confidentiality.
How to Keep Curiosity from Killing the Cat
1. Harassment and Discrimination Claims
In a curiosity-driven workplace, employees might feel emboldened to speak up about inappropriate behaviour or policies. While speaking up about inappropriate behaviour is generally positive and should be encouraged, employers must comply with their obligations to properly assess and address such reports and protect their employees from retaliation.
A culture of curiosity might also be misinterpreted by employees as an invitation to push boundaries and engage in inappropriate exploratory conversations with colleagues and clients, leading to claims of harassment. For example, Jessica Combs alleged that Netflix encouraged participation in one-on-one meetings and team-building exercises that resulted in other workers asking sexually inappropriate questions, flirting, and making unsolicited sexual advances.
Additionally, in an environment that encourages questioning, the potential for miscommunication also increases, which also expands the potential for claims of harassment and discrimination. For example, what one employee sees as constructive feedback or appropriate performance management, another may perceive as criticism, hostility, or harassment.
To avoid potential harassment and discrimination claims arising from a curiosity-driven workplace, employers can implement the following:
Clear Policies: Implement comprehensive anti-harassment and anti-discrimination policies that define acceptable and unacceptable dialogue and provide clear examples of what constitutes harassment and discrimination, including inquiries related to human rights protected grounds[ii].
Training: Provide training on policies, respectful communication and implicit bias, and the organization’s expectations regarding employee conduct to help employees navigate conversations sensitively. Further, employers should train employees on effective communication strategies to promote clarity and understanding during discussions, especially performance related discussions.[iii]
2. Confidentiality Breaches and Intellectual Property Ownership Disputes
Curiosity culture can lead to employees probing into areas that may breach confidentiality, such as sensitive company information ( including research findings, market studies, and information technology safeguards) , client data, or proprietary processes. Employees might discuss confidential matters, or include them in their independent research, under the guise of inquiry, risking data breaches.
Further, open discussions about ideas and innovations may lead to disputes over ownership of intellectual property for several reasons:
Lack of Clarity: It can become unclear who contributed what. When multiple people collaborate on a project, determining the original creator of an idea can be complicated, leading to disagreements over IP rights. Further, organizations may not have well-defined policies or proper terms in their employment contracts regarding ownership of work product, especially in creative fields. Without such clarity, employees might assume they retain rights to their ideas, while the company may believe it owns anything discussed or developed during work hours
Misappropriation: Employees may inadvertently share their own ideas or innovations in meetings or brainstorming sessions. If those ideas are later developed by others without clear agreements, the original creators may feel their contributions have been appropriated.
Retaliation and Misunderstanding: Employees might fear retaliation for claiming ownership or discussing their ideas, leading to further misunderstandings about contributions and rights. This fear can create an atmosphere of distrust and can also result in legal claims and allegations of bad faith.
Intellectual Property Laws: Different jurisdictions have varying laws concerning IP ownership. If a company doesn't establish clear agreements on IP rights, employees may invoke legal protections to claim ownership of their ideas and the developments that follow.
These factors underline the importance of employers having:
Confidentiality Agreements: Require employees to sign confidentiality agreements and provide regular reminders and training to assist in informing employees about the importance of safeguarding sensitive information. Employers should also remember to regularly update their confidentiality agreements to ensure that they reflect current practices, law and new company innovations.
Guided Inquiry: Establish boundaries around discussions (in person and online) related to confidential topics, encouraging employees to seek guidance from management when in doubt.
3. Curiosity Causing Job Performance Issues
Curiosity-driven cultures can indeed inspire employees to pursue innovative ideas beyond their defined roles. While often beneficial, this can also lead to performance management challenges for several reasons:
Role Confusion: When employees explore areas outside their designated responsibilities, it can blur the lines of accountability. Not all managers may be equally supportive of innovation outside of defined roles. This inconsistency can lead to confusion and frustration, as employees may not know whether their initiatives will be encouraged or penalized. Further, managers may find it difficult to evaluate performance if team members are not focusing on their core duties. If not properly managed, employers may also be exposed to arguments that the employer condoned the role extension which in turn could lead to disagreements over proper compensation, bonus entitlements, proper job titles and whether the employee has implicitly been or should be promoted.
The side gig: Employees pursuing side projects may divert time and resources from their primary tasks. This can lead to decreased performance in their essential roles, resulting in conflicts with performance expectations and lead to potential discipline for failure to perform their primary role. It can also lead to tension among colleagues who feel that they are carrying the workload while others chase new initiatives.
To mitigate these issues and the potential that employers and employees will have to engage in performance management which may ultimately lead to terminations, organizations can create structured processes for innovation, such as designated innovation time with defined parameters, clear guidelines on project scope, and regular check-ins that encourage exploration while aligning with overall performance expectations.
While a curiosity culture can drive innovation and employee engagement, it is essential for organizations to recognize and address the legal challenges that can arise. By implementing clear policies, providing training, and establishing guidelines for communication, employers in Ontario can foster an environment that encourages exploration while minimizing legal risks. A balanced approach to curiosity can create a workplace that not only thrives on innovation, but also upholds legal standards. In the end, curiosity can be a powerful tool for growth, but it must be harnessed wisely to ensure a safe and compliant workplace.
[i] Jessica Combs v. Netflix, Inc., Case Number 24STCV18761, filed in the Superior Court of California, Los Angeles County,
[ii] OHRC s5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5); 2012, c. 7, s. 4 (1).
Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (2); 1999, c. 6, s. 28 (6); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (6); 2012, c. 7, s. 4 (2).
[iii] In Ontario, employers with 5 or more employees are legally required to have written workplace harassment and workplace violence policies that include, in part, a summary of the investigation process the employer will undertake in the event of a complaint. Employers are required to train employees (“provide information and instruction”) on their policies and the employees’ obligations. Further, required training under the Accessibility for Ontarians with Disabilities Act includes training on the Code.
