Fighting harassment in the workplace

Having a clear harassment policy, and sticking to it, means fewer headaches for employers

Most employers know that developing, implementing and enforcing a formal workplace harassment policy is a sound business decision. The existence of such a policy is also considered by human rights tribunals when deciding whether an employer is liable for harassment.

In Robichaud v. Brennan, the Supreme Court of Canada said the goal of human rights legislation is to identify and eliminate discrimination and, in discussing employer responsibility, stated: “If the act is concerned with the effects of discrimination rather than its causes (or motivations), it must be admitted that only an employer can remedy undesirable effects; only an employer can provide the most important remedy — a healthy work environment.”

The employer is presumed to be in the best position to remove harassment from the workplace and will be responsible unless it can demonstrate it did everything reasonable under the circumstances to prevent it or alleviate its effects.

To meet this burden, employers must create a sound and fair harassment policy, communicate it to employees and provide harassment training.

Elements of a policy

There is no one-size-fits-all harassment policy and employers should develop one that will function within the workplace and is credible from the employees’ perspective. A policy that is too cumbersome or lacks credibility will be doomed to failure. A policy should contain:

A clearly defined scope of conduct that amounts to harassment along with the employer’s commitment to ensuring a harassment-free workplace. Normal supervisory practices, including discipline, are not necessarily harassment unless arising out of a prohibited ground of discrimination under human rights legislation. The question here might be whether the employer wants to include “non-prohibited ground” harassment allegations under the policy.

A statement of duties and responsibilities of the employer, managers, supervisors and employees. Many policies will specify harassment need not be “employee to employee” but can arise in many ways, such as by customers or contractors. Furthermore, some policies will define the workplace broadly, which seems consistent with the rulings in a number of cases.

A clear complaint procedure for filing and addressing a complaint. As an example, the complainant will be required to submit a written complaint to a specified individual within the company.

An outline of how the complaint will be processed after it is filed. Once a complaint is filed, it should be thoroughly investigated by interviewing the accused and anyone having knowledge of the matter. It is worth noting an employer would likely have a responsibility to investigate a complaint even if an employee complains of harassment and then asks the employer not to do anything. Once the employer has knowledge, it cannot simply turn a blind eye.

A statement that, to the extent possible, the complaint will be dealt with in a confidential manner. This recognizes an investigation will be conducted and details of the complaint will necessarily have to be disclosed to ensure a balanced and fair investigation.

An explanation of what will happen at the conclusion of the investigation. This can include possible courses of action and how the complainant and accused will be notified of the outcome.

Penalties set out for any employee who engages in the prohibited conduct or who files a false complaint. Motives such as getting a supervisor fired or interfering with the employer’s investigation could be cause for discipline. The policy must be clear, functional, credible and consistently applied and enforced.

Communicating policy to employees

The development of a harassment policy is the first step an employer can take to demonstrate it has tried to remove harassment from the workplace. The next step is to ensure the policy is communicated to all employees.

There are a number of ways this can be done, including posting it on a bulletin board or distributing it. It should be reviewed with new hires, who should be asked to acknowledge they have received, read and understood a copy of the policy.

Training can be broken down and tailored to three groups: Employees, supervisors and senior management. Questions and the valuable exchange between facilitator and attendee might be stifled if all three groups are present at the same session.

Harassment training is also considered by adjudicators in deciding whether an employer acted reasonably in meeting its duty to eliminate harassment from the workplace.

In addition, employers can adopt a number of strategies for dealing with workplace harassment:

• review the existing harassment policy and update it — some policies developed in the early 1990s are limited to sexual harassment, but employers should expand this to include other forms of harassment under human rights legislation;

• ensure there is a workable and communicated internal process built into the policy for dealing with harassment complaints in a timely and, to the extent possible, confidential manner;

• educate employees about the harassment policy and distribute it on a periodic basis; and

• provide specific training to supervisors and managers regarding their obligations when dealing with harassment issues and the risks of personal liability for workplace harassment.

For more information see:

Robichaud v. Brennan, 1987 CarswellNat 907 (S.C.C.).

Michael Fitzgibbon is a partner practicing management-side labour and employment law at the Toronto office of Borden Ladner Gervais LLP. He can be reached at (416) 361-7365 or [email protected].

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