It may not be easy to confront workplace harassment, but failure to do so won’t make it go away
Employers have a responsibility to do what they can to protect employees from harassment, particularly sexual harassment. Having policies prohibiting harassment and outlining procedures on what to do if it happens is a key element to fostering a safe workplace, but employers must use those tools properly if they’re really going to eliminate it.
It’s been established in employment law that an employer who fails to conduct a proper investigation into a harassment complaint might as well not have bothered. A subpar investigation is not going to get to the bottom of the problem, will probably create added stress and disengagement from the victim and, if harassment did take place, result in the perpetrator not being disciplined properly — which could also encourage them to repeat the misconduct without fear of consequences. So things continue down the road to a poisoned and unsafe work environment.
Ontario car dealership
Earlier this year, the Ontario Human Rights Tribunal released a decision that reminds us of what an employer’s failure to take proper steps in the wake of a harassment complaint can do. A car dealership employee — a little over four months after she was hired — complained that she was sexually harassed by a manager after they had been socializing onsite, but the only steps the employer took was to tell the manager to stay in his office and avoid contact with the employee.
On its face, that could be considered a way to keep them apart, but in practice, not so much. No one in management bothered to follow up to make sure the manager was staying in his office and, as a result, the employee sometimes crossed paths with him. He also was allowed to contact her regarding sick days she took in the wake of the harassment, which added to the employee’s anxiety.
The manager also was not really disciplined aside from a verbal reprimand — the investigators, who were managerial employees and not independent, determined that alcohol was involved in the incident and both were responsible for what happened — and the employee wasn’t advised of what solutions the employer had come up with.
She eventually couldn’t take it anymore and transferred to another location — for lower pay — about one-and-a-half months after the incident of harassment. All throughout the process, the employee had to push for action by the employer.
The manager was eventually charged with assault and pled guilty in a court of law.
The tribunal found that the inadequate handling of the employee’s complaint amounted to sex discrimination. The employer ended up having to pay about $60,000 — including $55,000 as compensation for the infringement of the employee’s rights under the Ontario Human Rights Code: see AB v. 2096115 Ontario Inc. C.o.b. as Cooksville Hyundai, 2020 HRTO 499 (Ont. Human Rights Trib.).
That’s a good sum of money for which to be liable for an employee that worked all of six months at the dealership before her transfer. And it’s hard to quantify how such circumstances can damage workplace culture — when something like this happens in a workplace, it’s highly likely others have seen or heard at least some part of it.
Best practices
So how can employers avoid such circumstances that can negatively affect their workplace culture as well as their bank accounts? As mentioned above, it starts with a good policy that’s communicated to everyone. Then, that policy should be followed — not just a prohibition of harassment, but the steps to take if it happens.
Complaints should be treated seriously and sensitively. And that includes dealing with the source of the problem, not just the symptom by sweeping the victim under the rug and not supporting them.
It’s important to remember that in the event of a harassment complaint, it’s likely the complainant feels vulnerable. During an investigation of a complaint and afterwards, if it’s found to have merit, it’s a good idea to keep the complainant and the accused perpetrator away from each other.
That may seem like common sense, but this isn’t the case in many situations. There have been multiple workplace sexual harassment lawsuits where employers didn’t think or care to take measures to avoid contact between the victim of sexual harassment and the accused — in the tribunal decision above, the employer went through the motion of doing it, but ultimately didn’t really make much of an effort.
Sexual harassment is still a sickness that’s happening in workplaces, despite advances that have been made through equality and anti-harassment initiatives. When an employer doesn’t take the problem to an alleged harasser and makes the victim shoulder the load of finding a solution — such as the employee in AB had to by leaving — the problem isn’t going to go away.
It can be a sensitive and touchy subject for employers and HR departments. It can be easier to treat the symptom rather than the cause. But when the cause isn’t addressed, the sickness remains.
