Duty to investigate regardless of complaint's merits
Question: What is the legal requirement for an employer to deal with a sexual harassment complaint, regardless of whether it’s determined there was harassment or not?
Answer: Employers in Canada are subject to a statutory obligation to provide a harassment-free workplace, whether codified in provincial or federal human rights legislation, occupational health and safety legislation, employment standards legislation or, in some cases, a combination of this type of legislation.
Provinces such as Manitoba, Saskatchewan, and Ontario, as well as the Northwest Territories and Nunavut, treat sexual harassment and personal harassment (or collectively “harassment”) as an occupational health and safety hazard. As with any other workplace hazard, occupational health and safety legislation in these provinces and territories generally mandates that employers establish workplace policies to protect workers from harassment, and such policies must meet specific criteria. In other provinces, harassment is dealt with by human rights legislation which often requires an employer to develop a harassment policy. Notably, in British Columbia, illness and injury sustained by harassment is recognized under workers’ compensation legislation as a compensable injury.
It is important to keep in mind that the liabilities associated with workplace harassment are not limited to OH&S or human rights legislation. Such behavior may also cross the line into criminal or civil liability. Practically speaking, employers should treat harassment complaints as they would an occupational health and safety complaint. On the front end, supervisors, managers, and employees should all be trained on the workplace harassment policy and its procedures. Employees must be advised that they can access these procedures without reprisals. Employers should address harassment complaints promptly and take all complaints they receive seriously, which includes undertaking some form of investigation into the complaints.
In some jurisdictions, such as Saskatchewan, legislation explicitly imposes a duty on the employer to investigate allegations of harassment. However, whether or not the duty to investigate is specifically provided for in legislation, investigation should always follow an allegation of harassment in order for the employer to meaningfully fulfill its duty to provide a harassment-free workplace (and, as much as possible, avoid liability if harassment has occurred). The employer should assign an investigator who is as independent as possible from the complainant and the alleged harasser (the “respondent”). The investigation must be fair to both parties. The respondent has a right to know what the allegations are and to have a full opportunity to respond.
Documentation is also critical. The investigator must review all relevant evidence available to it, including any documents, testimony, video footage, or any other forms of evidence. The investigation should protect the confidentiality of the parties and be carried out on a “need to know” basis. Once the investigation is complete, the investigator should prepare a written report with an outline of the allegations, facts, findings, analysis and conclusions. The parties should be advised of the investigator’s findings.
If the employer determines that the complaint has been made out, it must take corrective action. It is very likely that the complainant will experience ongoing negative impacts from the harassment. The employer has a duty to correct any such impacts and to provide support to the complainant. For example, the respondent may be subject to discipline up to and including dismissal or the complainant or respondent may need to be relocated or to receive counseling.
Discipline should reflect the severity of the harassment. In severe or repeated cases of harassment, the employer may be justified in terminating the employee. However, not all incidents of harassment will warrant termination. Discipline short of termination, including a written warning or suspension, may be more appropriate depending on the circumstances. All of the surrounding circumstances, including the employee’s position, seniority and prior disciplinary record, should be taken into consideration in deciding what discipline is appropriate.
