Developing a culture of confidence in addressing workplace harassment

For more than 40 years, Canadian courts have approached questions of work and workplace relationships from the understanding that work is often a fundamental aspect of a person’s life which gives them a connection to others, financial support, and their own personal sense of contribution and emotional well‑being.

Building on that foundation, in the last 10 years, Canadian human rights and occupational health and safety legislation has sought to require and promote the identification, investigation and prohibition of harassment – particularly sexual harassment – in the workplace.

These concepts have pushed workplaces to develop improved policies and culture designed to limit and eliminate workplace harassment and sexual harassment. But, as we have seen with the giant spotlight of the #MeToo movement, laws, policies and training can only go so far. Silence and inaction among management and the real or perceived threat to job status, standing within the workplace, or to career advancement and opportunity that harassment victims continue to hold because of how management responds, remain significant obstacles to the practical fulfilment of the intent of legislation and workplace policies.

Radio personality cites harassment

Five years into #MeToo, allegations by a prominent female media personality, Jennifer Valentyne, against another prominent male media personality, John Derringer of the Q107 radio station in Toronto, reinvigorated conversation about how to prevent and act upon harassment and sexual harassment in the workplace. How does an employer answer the fundamental question that Valentyne has posed: “What would you do if you knew?”

One piece of the puzzle that can likely only be done through the regular involvement of management and human resources is to create an environment of confidence among employees that if or when a harassment complaint is raised, it will not only be fairly and diligently investigated but, if substantiated, management will do what they often consider to be the most difficult thing – choose the personal well-being of their aggrieved employee over the business or someone more “instrumental” to that business.

The person bringing forward the complaint must be confident that they will not themselves become the focus of negative feedback or, worse, negative impact upon their workplace position and career opportunities. This can be particularly difficult when it is well-known that prior complaints about the same person, engaging in the same behaviour, were either not addressed, or that the remedial actions taken were clearly unsuccessful in improving or ultimately eliminating the behaviour or threat.

Investigate complaints

For management in particular, there should be very limited circumstances where knowledge by the employer – direct knowledge, or knowledge that could have been obtained with some reasonable diligence – precludes or limits an investigation into apparent misconduct, even when the target of that misconduct has not pursued a complaint themselves. At law, avoidance or wilful blindness is neither a defence nor an excuse.

This form of management inaction – and potentially condonement – has the corollary effect of leaving co-workers in a difficult situation of having to determine whether to report or not (and further, whether the victim of the harassing conduct wants them to speak up or report the conduct).

Each Canadian jurisdiction has its own structure of mandatory anti-workplace harassment and sexual harassment legislation, including mandating preventative policies, training, complaint processes, investigations including mandatory impartial third-party investigation, and, finally, reporting of findings and remedies. What is less understood is how well the legislative structure has worked in changing hearts and minds.

Read more: Harassment is still a problem affecting employers’ ability to attract and retain talent, but proactive measures are helping, writes an employment lawyer.

If Valentyne’s procedural complaints against the radio station’s owner, Corus Entertainment, are validated, clearly there is still a lot of work to be done. If a person with the experience and profile of Valentyne did not feel confident in either the law, her co-workers, or her employer and felt that “HR would choose him,” developing an environment of confidence remains a work-in-progress.

And, for any anti-harassment, anti-bullying or anti-violence policy to be meaningful and give support to change, it must give confidence to everyone within the organization that complaints should be brought forward and, when substantiated, the policy will be used and applied. If this policy is not equally applicable to everyone, then it is not applicable to anyone.

Stakes never been higher

What remains clear is that for both employers and employees, the stakes have never been higher. Failure can result in a workforce that loses faith in the company’s ability to provide and support a harassment-free environment, particularly when difficult decisions need to be made and enforced.

This creates an environment of poor morale, an increase in employee absenteeism, requests for employee accommodation, employee disengagement, and difficulty in retaining or recruiting employees. For businesses, this may also result in public statements on social media used to force action where the employer has been reticent or minimized the complaint.

Such statements are damaging to the business and its reputation or “the brand,” which is not easily or quickly rehabilitated. Ultimately, employers can look at timely training, monitoring, investigation, and enforcement of harassment policies as good business.

For employers, remain vigilant. Be legislatively compliant and continually review, revise and train on your policies regarding all forms of harassment prevention in or related to the workplace. Develop confidence within your workplace and among your employees that complaints will be investigated and addressed with correction implemented when and as needed, and the hard decisions defended.

And be compassionate – the process of dealing with allegations of harassment in the workplace will be difficult for all parties involved.

Michael Horvat is a partner in the Workplace Law Group at Aird & Berlis in Toronto.