Employers: Don’t let workplace harassment catch you off guard (On law)

Clear policies, commitment can prevent harassment

Workplace harassment is an unpleasant issue for employers and employees, but it’s an issue that must be addressed in every workplace. Employers have an obligation to provide a workplace free of harassment under human rights legislation. Harassment cases make frequent appearances in the courts and employers are often in deep trouble once it gets to that point.

Shahram Dastghib, a painter at Richmond Autobody in North Vancouver, B.C., was found to have been discriminated against when he was fired for reacting angrily to harassment from his supervisor and co-workers.

Lionel Gough, a seasonal labourer for C.R. Falkenham Backhoe Services, a Nova Scotia construction business, was subjected to humiliating and racist comments and incidents over eight years with the company, which caused him to take stress leave.

Danielle Bennett, a waitress in New Minas, N.S., was subjected to inappropriate comments and touching by her boss and insulted by another employee. When her boss first ignored her and then retaliated against her, his “cavalier attitude” and actions were found to be harassment.

In each case, the employer was found to be responsible for allowing a poisoned work environment conducive to harassment and not dealing with the harassment itself. The employees were all given substantial compensation for the harassment they suffered.

A climate of harassment can develop when chronic conflicts in the workplace are left unresolved and unaddressed by leadership, says Frema Engel, a Montreal-based consultant and author of Taming the Beast: Getting Violence Out of the Workplace. These conflicts can be caused by stress and frustration with work or other employees.

“An organization is a community of individuals who are there to work together,” Engel says. “But working together does not just happen. Differences come out and, unless issues are resolved, the tension builds.”

Things can start with seemingly innocuous incidents but grow quickly if left unchecked. In each of the above cases, small incidents escalated into frequent taunting and other forms of harassment until the victim couldn’t take it any more and left.

Glenn French, the president and chief executive officer of the Canadian Initiative on Workplace Violence in Toronto, says there can be environmental factors leading to harassment, such as added workload stress caused by cutbacks and individual factors caused by “incivilities” between workers. Both can be the result of a perceived loss of control by employees.

Increased disability claims and events such as downsizing should be monitored by employers as these are warning signs of increased employee stress, says French.

When any kind of harassment happens in the workplace, the employer will likely be held liable by the courts. French notes employers can be found liable not just under human rights legislation, but also under health and safety laws. The courts are unforgiving if the employer hasn’t done enough to protect employees.

“Employers are responsible for employees’ conduct and well-being,” says French. He says an employer can be found guilty of “negligent luring” if it hired someone known to have harassing tendencies, “negligent retention” if it doesn’t discipline sufficiently and “negligent supervision.”

“Employers have an obligation and a legal responsibility to resolve a situation of harassment,” says Engel.

Employers can protect themselves and employees with a comprehensive and clear anti-harassment policy — one that communicates the company’s values and prohibited behaviour, even with legislative protections such as Ontario’s Human Rights Code in place.

“The code protects from discrimination, but non-code violations are unclear,” he says. “Many employers now have codes of conduct (that) go further than the code.”

A clear policy that sets up positive values is the most important tool for employers in trying to prevent harassment, says Ingrid Taylor, director of trauma and organizational services for Markham, Ont.-based HR solutions firm Ceridian Canada.

“Developing a policy that communicates values is critical,” Taylor says. “It (should) dictate and clearly identify what prohibited behaviours are and create a culture of respect and zero tolerance for those behaviours.”

Policies should also outline a plan of action in the event of a violation. If a complaint of harassment is made, employers need to act quickly through a trained person or committee assigned to handle harassment issues.

French says investigations need to happen immediately.

“Someone should have authority to deal with the situation, even a response team set up that can act quickly to implement the established practice within hours or even minutes,” he says.

Anyone involved in dealing with complaints should be properly trained in investigation techniques, confidentiality and working out solutions with employees. Engel and French both suggest outside people could be brought in if there’s concern over bias or competence in the investigation.

Employers must also ensure proper documentation when dealing with harassment complaints. Records of the investigation and the options, obligations and restrictions for all parties can assure the victim proper action has been taken. Everyone involved, particularly the complainant and accused, should sign off once a problem has been resolved. This also protects the employer should matters proceed to an arbitrator or the courts and enables the employer to perform risk assessments and evaluations of its policy.

“Employers should regularly review policies, emergency response plans and conduct risk assessments,” says Taylor. “They should communicate (with employees and response teams) regularly and always reassess.”

Jeffrey R. Smith is editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information visit employmentlawtoday.com.

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