By Alan Riddell and Kyle Van Schie
Employers have a legal obligation to provide employees with a harassment-free workplace. They are obligated to take all reasonable precautions to protect their employees in the workplace. This includes the steps that an employer must take when it learns about an incident of workplace harassment. Taking the wrong step could significantly impact your workforce and lead to very costly consequences.
Workplace Harassment and Sexual Harassment Defined
As an employer, you must be able to recognize when one of your employees is being harassed. This also includes workplace sexual harassment.
Workplace harassment is defined in both the Occupational Health and Safety Act (OHSA) and the provincial Human Rights Code as “a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” Typically, though not always, the vexatious comment or conduct must be repetitive (unless it is very serious) in order to amount to workplace harassment. Some examples of conduct that often amounts to harassment are threats, bullying, intimidation, offensive comments, and belittling behaviour. However, the OHSA explicitly states that “a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.”
The OHSA defines sexual harassment as: “(a) 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, or (b) making a sexual solicitation or advance where the person making it is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know the solicitation or advance is unwelcome.”
Investigating and dealing with harassment correctly
Any time an employer is faced with a complaint, or even learns of an incident, of workplace harassment or sexual harassment it has a duty to investigate and determine the best course of action based on the merits of that complaint. Failing to properly investigate, and deal with, a harassment complaint is a violation of the OHSA and could lead to penalties from the Ministry of Labour and result in a costly lawsuit by the affected employee.
Employers need to guard against certain errors that courts have commonly identified in workplace investigations into harassment complaints:
- Failing to immediately investigate when first made aware of an alleged incident of harassment;
- Excessive haste in suspending or terminating the alleged harasser;
- Failing to provide the alleged harasser with a meaningful opportunity to respond to the allegations against him or her;
- Failing to provide the alleged harasser with sufficient particulars, including the name(s) of the complainant(s) and the dates of the alleged incidents;
- Using an investigator who is insufficiently trained and/or lacks objectivity;
- Failing to properly document the investigation, and to keep records of who was interviewed and what they said; and
- Failing to complete the investigation in a timely manner and failing to advise the complainant of the outcome.
Tips for dealing with workplace harassment and for conducting an effective and balanced investigation
In addition to avoiding the common mistakes above, employers should observe the following guidelines when investigating allegations of harassment:
- Draft a zero-tolerance workplace harassment policy with sanctions that are regularly enforced;
- Where possible complaints and allegations of harassment should be made in writing;
- Show empathy and concern for the victim but do not prematurely admit that the alleged behaviour amounts to harassment or sexual harassment – wait for the investigation to be completed;
- Segregate the alleged perpetrator from the victim;
- Maintain strict confidentiality over the process and ensure that the process is discussed only with the individuals who are directly involved or affected;
- Ensure that the latter do not discuss the accusations with others;
- Ideally, ensure that parties are given the opportunity to consult with legal counsel; and
- Ensure that the result of the investigation is shared with the complainant in a timely fashion.
Workplace investigations can be complicated and must be approached delicately, with a view to minimizing the risk of future liability for the employer. Before starting such an investigation, employers should consult with an experienced employment law lawyer to ensure that their plan of action fully complies with all legal requirements.