Determining the duty to investigate and dealing with potential workplace harassment
Question: If an employee who has expressed concerns about sexual harassment declines to file a formal complaint under our harassment policy after we have made it clear that she may do so without fear of reprisal, will we be liable if the employee later decides to bring a human rights complaint?
Answer: Under human rights law, an employer has a duty to provide a work environment that is free from discrimination and harassment on the grounds protected by the applicable legislation. While it is good practice — and in some jurisdictions mandatory — for an employer to have a policy that provides a mechanism for the filing, investigation and disposition of harassment complaints, an employer may be required to act even if a complaint has not been filed.
Human rights tribunals have held that an employer has an obligation to investigate a complaint of alleged discrimination or harassment, and that a failure to do so may result in liability even if the complaint is ultimately dismissed by the tribunal. If the complaint is upheld, the employer may be exposed to additional monetary damages if it is found to have failed to investigate and deal properly with the matter.
How should an employer deal with an employee who claims to have been exposed to harassment or discrimination, but says she does not want to proceed with a formal complaint? In this type of situation, the employer is put in a difficult position. On one hand, it is challenging for the employer to proceed with an investigation where the complainant refuses to come forward or insists on remaining anonymous. As a matter of procedural fairness, it is difficult for the employer to put the allegations to the respondent and give him or her a reasonable opportunity to respond, if the complainant refuses to come forward or participate in the process. On the other hand, the employer cannot simply turn a blind eye to the fact that harassment or discrimination may be occurring in the workplace.
To assist the employer in persuading a complainant to come forward in this kind of situation, the workplace policy on discrimination and harassment should contain clear language indicating that retaliation against an employee who has filed a complaint will not be tolerated, and will lead to discipline up to and including termination of employment.
An employer may also search for other ways to initiate the complaint and investigation process. For example, a co-worker who has witnessed the alleged harassment or discrimination may be willing to make a complaint. Alternatively, the employer may be able to monitor the work environment carefully, and in that way obtain independent evidence of any discrimination or harassment that is occurring.
If alternative options are not viable and the complainant still does not wish to participate, the employer may need to proceed with an investigation in the complainant’s absence. In this type of situation, the employer will need to be careful to ensure that the respondent’s rights are protected while witnesses are being interviewed, so the investigation does not turn into a “witch hunt.” Additionally, it is advisable for an employer to recirculate its harassment policy and provide training sessions to employees to raise awareness and remind people regarding the parameters of acceptable conduct at work.
