Claims of harassment, if proven, can be damaging to an organization — not only financially, but from a morale, productivity and workplace culture perspective.
The legal definition of harassment is “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome based on one of the prohibited grounds.” The translation: Doing something to someone else that disturbs or distresses them, that you know or should have known they didn’t like.
The obligation to provide a workplace free of harassment exists under human rights and occupational health and safety legislation. These obligations apply to all employers to prevent and protect employees from discrimination and harassment, including sexual harassment.
A workplace can be: within the four walls of the establishment; an off-site meeting; gatherings for business; or any other event or place related to employment where the employee is present during the course of their work — even if outside of normal working hours. It can also be, at times, on social media if the relationship of the parties arises from work.
This is a very broad definition. And where there are allegations of harassment, an employer is under an obligation to investigate these allegations to determine if they are founded. A failure to do so could lead to liability or possibly (particularly in Ontario) a Ministry of Labour investigator conducting an independent investigation.
To promote the concept of a workplace being harassment-free, employers should consider the following:
Policy review: Review and update policies on workplace violence and harassment. Make sure that the definition of workplace sexual harassment is specifically addressed.
Workplace diversity policy: Consider creating a diversity and inclusion policy which recognizes the necessary and growing legal requirements related to accommodation, harassment and sexual harassment, but also meets the growing social expectation among employees (and particularly millennials) that employers eliminate barriers that may impede full inclusivity in the workplace.
Complaint procedure: The workplace harassment policy should set out a clear and defined process for making a complaint. Employees must have the ability to report an allegation of workplace harassment to someone other than their supervisor or manager in the event the supervisor or manager might be involved in the complaint.
Investigation: Set out a process and procedure for the investigation of complaints. The legal requirement is that the investigation be done in a manner “appropriate in the circumstances.” Whether or not that involves an internal investigation or independent third party depends on the circumstances, and should be discussed with HR or legal counsel.
However, the following guidelines should be considered with respect to the investigation:
• Take all complaints seriously. Don’t judge (either with respect to the complaint itself or the alleged harasser). Be sensitive and, where necessary, consider whether or not there needs to be a separation from the workplace of the alleged harasser for the period of the investigation. Remember that an unpaid suspension can be deemed a termination, so paid absences are usually preferable.
• Appropriate training for the investigator(s) — simply asking questions and taking answers is not necessarily appropriate. Investigators should be trained and expected to provide a clear and concise report of their findings.
• Be confidential, where possible, but ensure that individuals who are interviewed understand that while confidentiality will be maintained to the extent possible, information may be shared for the purpose of conducting a fair investigation. Finding the balance between privacy and the obligation to investigate can be delicate, but a blanket “confidentiality” undertaking simply cannot be maintained.
• Consider the results of the investigation and act appropriately. Is discipline or termination necessary? Workplace training? Mediation amongst the parties? Consider options and consult HR or legal counsel on next steps.
• Have a process for communicating the results to both the complainant and the alleged harasser. A poorly communicated investigation can do more harm than good. Be clear, concise and directive in the response, and be available to deal with and answer any inquiries.
• Manage the fallout. Investigations are time-consuming and disruptive. They take their toll and often pit one employee against another. Have a plan for not only communication, but dealing with questions and upset employees. Healing may take time. Be open not about the details, but about the organization’s willingness to move forward towards a harassment-free workplace.
• Train your employees, managers and supervisors. Use someone experienced in harassment in the workplace. Create a training plan and update it annually.
Dealing with the issue of harassment isn’t just about optics, it’s about maintaining a safe workplace where employees are (and feel) free from any threat of harassment, including sexual harassment. The benefit is a more productive and efficient workplace.
The happy side effect can be a better bottom line, strong employee retention and an excellent reputation.
To learn more about harassment in the workplace, be sure to attend the Aird & Berlis Workplace Law Summit, taking place on Nov. 1 from 8:30 a.m. – 1:30 p.m. at the One King West Hotel in Toronto. To register, email email@example.com.
Lorenzo Lisi is a practice group leader and partner in the workplace law group at Aird & Berlis in Toronto. He can be reached at firstname.lastname@example.org.
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