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Protecting employees from harassment and discrimination requires effort

Simply having policies in place is no guarantee — employers need to back them up

By Jeffrey R. Smith

Is your workplace fair and equal to everybody? Are all your employees protected and comfortable with being themselves at work? For employers, it’s important to ensure all employees are treated the same and with respect, regardless of their sex, sexual orientation, race, religion, or any other personal characteristics that may differentiate them from the majority.

With recent events associated with Pride in Toronto and around the world along with controversies and protests related to race in the United States, it’s good to remember that these struggles for equality apply to workplaces as well. Every employer in Canada is subject to human rights legislation protecting employees from discrimination or harassment based on protected characteristics such as those mentioned above. It’s also worth mentioned that harassment and discrimination cause negative and fearful energy that poisons workplaces and likely hurts productivity and leads to high turnover. And that’s something employers would be wise to avoid, legal considerations or not.

It’s fine for employers to have policies against discrimination and harassment and procedures to follow if it happens, but those policies are only good if the employers and employees follow them. Otherwise, they’re not much protection. It’s also important to take all complaints seriously, or else employees won’t feel safe to come forward when they feel harassed or discriminated against.

There are countless cases out there where courts and arbitrators have had to hear about instances of alleged harassment and discrimination — some of the complaints are legitimate and some are overreactions. But both situations have something in common — the employers need to take them seriously and conduct a proper investigation. If the investigation doesn’t turn anything up, then that’s fine. But a proper investigation is the right way to act in good faith and ensure workplace protections are in place.

There have been cases where investigations were properly conducted and harassment was found. As long as the employer follows consistent and reasonable procedure, it probably doesn’t have much to worry about. If harassment or discrimination took place but the employer didn’t properly investigate, then look out. Legal action could hurt, both to the employer’s finances and reputation.

There are also cases out there involving circumstances less common but underlining the importance of proper investigation of harassment allegations. In these, a court or arbitrator finds that an employee who complained of harassment or discrimination was not in fact a victim of it, and perhaps the employee was just overreacting or misinterpreting something. However, the employer didn’t take it seriously and didn’t give the employee the right of a fair and reasonable investigation — leaving the employer exposed to legal action, even though there was no actual harassment or discrimination. In such cases, while the employee’s human rights may not have been violated, but her right as an employee to have her complaint taken seriously and investigated was.

Every employee deserves respect and equal treatment at work, regardless of any personal characteristics they have. But employers must make the effort to ensure that the reality of their workplaces reflects this, or else they might instead be perpetrating harassment and discrimination instead of preventing it.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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