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Investigating harassment – both real and perceived

Every complaint warrants attention, but an unhappy employee isn’t necessarily a harassed employee

By Jeffrey R. Smith

Employers have a duty to protect employees from harassment and discrimination. If they don’t, it can lead to a poisoned work environment that can make workers miserable, less productive — and even contemplating legal action.

This means if an employer becomes aware of potential harassment and discrimination — either through a direct complaint or other means — it needs to take action. However, feeling like being harassed and actually being harassed can be different things. If an employer investigates properly and finds no reason to pursue the matter, it’s unlikely it needs to take further action — even if the complainant doesn’t like the decision.

Recently, an Ontario correctional facility received complaints of racial discrimination from one of its corrections officers. The officer complained of altercations with co-workers with racist undertones and swastika graffiti she found on a wall. One co-worker was disciplined following an investigation but, in two other altercations and the graffiti incident, no discrimination was found by the employer.  In total, the employee sought $100,000 in damages for the discrimination she suffered and the employer’s failure to investigate them properly.

In the end, a grievance settlement board found, for the most part, the employer properly handled each situation — with the exception of the incident where the co-worker involved was disciplined. In that case, it did investigate properly, but it took an unreasonable amount of time and the employee wasn’t notified of the outcome. She was left to wait and wonder for 15 months while still having to work with the co-worker in question. For this, the employee was awarded $3,500.

However, the other altercations were deemed by the employer to be arguments where there were no racist undertones. In fact, the co-workers involved were surprised and indignant of such allegations. Perhaps because the employee was sensitive to potentially racist actions and comments — due to the first altercation and her activism in promoting a diverse and equal work environment — she perceived racist undertones when there was no evidence of any. The employer investigated the altercations and found no racism and the board agreed. Just because the employee didn’t agree with the decision didn’t mean it wasn’ t the right one, said the board.

In addition, the swastika graffiti wasn’t directed at the employee specifically and the employer took means to paint it over and search for the culprit. There was no evidence of any direct harm to the employee, other than she happened to be the one who discovered it, said the board.

In total, the employee’s $100,000 claim for damages from the employer’s alleged failure to properly deal with her harassment and discrimination complaints netted her $3,500 in actual damages: see Ontario (Ministry of Community Safety and Correctional Services and OPSEU (Williams), Re, 2015 CarswellOnt 378 (Ont. Greivance Settlement Bd.).

Whether an employee’s harassment complaint is valid or not, the proper course of action for employers is to investigate impartially and reach a reasonable decision. This will help reduce legal liability and protect the work environment — employees wrongly accused of harassment will feel better when vindicated, even if the accuser does not. But it’s also important to remember the sensitivity of such situations and try to find out why an employee who complained of harassment may have felt that way if no actual harassment was found. The emotions and sentiments that cause such feelings could also contribute to an unhealthy work environment, even without formal harassment and discrimination.

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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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