Knowing the difference: Performance management versus harassment

Employers must respond promptly to decipher between legitimate complaints and performance issues
By Stephen Carpenter and Hilary Foster
|Canadian HR Reporter|Last Updated: 01/30/2019
Harassment
Employers are accountable and should provide training to managers, supervisors and employees on the difference between sexual harassment, other harassment and performance management. Credit: Simple Line (Shutterstock)

#MeToo began as a hashtag to raise awareness of the pervasiveness of sexual harassment and assault in society.

The phrase has been posted or commented on millions of times. Moreover, #MeToo has expanded from raising awareness of sexual harassment and assault to raising awareness of a power imbalance between men and women, especially in the workplace.

In the wake of #MeToo, more and more complainants are coming forward with allegations of workplace sexual harassment and other forms of harassment. Whether unmeritorious claims are on the rise, or whether the #MeToo movement has simply given complainants the confidence to speak up, is open for debate.

Either way, employers are facing immense societal pressures to take every allegation of harassment seriously. Reputational risks for employers that fail to do so are at an all-time high.

With this in mind, what is the correct way for employers to respond to harassment allegations? Does every allegation call for a thorough and external investigation? Employers are beginning to ask how they should respond to sexual harassment complaints and, in particular, those complaints which the employer views as performance management — not harassment.

The most straightforward answer starts from the basics. The best defence is a good offence or, in other words, employers can be proactive by establishing policies and procedures in relation to harassment and performance management. In fact, depending on your province, employers may be legally required to implement sexual harassment policies.

But it is not enough to simply have a policy. Employers are accountable and should provide training to managers, supervisors and employees on the difference between sexual harassment, other harassment and performance management.

The frequently cited definition of sexual harassment is “engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome.”

Sexual harassment and harassment policies should define harassment, provide examples, and specifically state that coaching, discipline or negative performance reviews are not harassment.

Performance management policies and procedures should also be structured so employers minimize the chance of employees mistaking performance management for harassment. The procedures should provide for regular reviews applicable to all employees so no employee feels singled out.

Performance reviews should be documented and based — to the extent possible — on objective metrics, and include a second-level review if possible.

Deciphering the claims

Notwithstanding that an employer has a well-drafted sexual harassment and performance management policy in place, allegations of harassment will still be received. So, how does an employer decipher which claims are legitimate and which are simply the employer exercising performance management rights?

And if it is simply performance management, how do employers communicate these findings to the unhappy employee?

Here are tips for how employers should approach these types of complaints:

Acknowledge the complaint and take it seriously: Don’t assume that what appears to be a legitimate exercise of performance management is not harassment.

Reasonable actions taken by employers and supervisors relating to the management and direction of workers are not harassment. However, if supervisor actions are unreasonable, it is possible that performance management could creep towards harassment. This is particularly so when the performance management is not based on objective criteria, or where it is vindictive, cruel or demeaning and based (or based in part) on sex, sexual orientation, gender identity or gender expression.

Be objective: Have an objective individual determine if an investigation is warranted, and do so fast. When determining if an investigation is appropriate, it is crucial to have someone who is qualified, independent and objective to take a first look at the allegations and ask: Would the allegations amount to sexual harassment if substantiated? If not, this may be one of the only situations where a thorough investigation may not be required.

When in doubt, investigate: Ask the complainant to document her allegations in writing. Have her include particulars of the harassment, and details of the incidents, dates, times and locations, as well as descriptions of any acts or statements. Let the complainant know what degree of confidentiality she can anticipate.

Seek legal advice: If you are unsure whether you should conduct an investigation internally or hire an external investigator, seek legal advice. More often than not, it will be more appropriate for an external investigator to conduct the investigation, as this will instill more confidence in the objectivity of the process. At the very least, the individual conducting the investigation should be objective. Of course, he should not have been involved in the incidents giving rise to the complaint, and should be unbiased.

Document: If a thorough review from a qualified, independent and objective individual determines the employee’s allegations to not constitute harassment, this should be reported, along with the process, investigation process and conclusions.

The accuser and accused should have the opportunity to review the report, while formal letters go out to them both.

Keep track of complaints: Review and update harassment and performance management policies, and audit them for compliance.

Stephen J. Carpenter is a partner and Hilary Foster is an associate at Stewart McKelvey in Charlottetown. For more information, visit www.stewartmckelvey.com.

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