What’s happening in this #MeToo era?
By Melanie Reist
Last month, I spoke to a group of senior human resource professionals from the Waterloo Region on workplace investigations.
I opened my presentation by mentioning that it was one year ago, Oct. 15, 2017, that actress Alyssa Milano tweeted for the first time #MeToo, beginning a social and political movement to address the prevalence of sexual harassment and assault in our society. What followed was a lot of discussion about the dramatic rise in workplace investigations and the prominent role they are playing in our workplaces.
With all the media attention surrounding this issue, it’s helpful to go back to basics. While human rights legislation has provided protections for workers from discrimination and harassment on a variety of grounds (including gender/sex) and workplace investigations have occurred for years, some jurisdictions have passed health and safety legislation requiring employers to establish harassment/sexual harassment policies and complaint processes. In some cases, jurisdicitons have enacted rules relating to workplace investigations.
While health and safety legislation has historically focused on protecting the physical health and safety of workplaces, these new laws are focused on creating workplaces that are also psychologically safe. As an example, in Ontario in 2008, the Occupational Health and Safety Act (OHSA), was amended by Bill 168 (an act to Prevent Workplace Violence and Harassment). This amendment defined harassment in the workplace, required employers to have policies and procedures to inform and train workers on harassment, and to provide a process for individuals to come forward with complaints.
In September 2016, Bill 132 (Sexual Violence and Harassment Action Plan Act) resulted in further amendments to OHSA to include workplace sexual harassment. The definition of sexual harassment mirrors that of the Ontario Human Rights Code.
In addition, Bill 132 outlined new employer responsibilities to make sure that:
- An investigation, appropriate in the circumstances, is conducted into incidents and complaints of workplace harassment.
- A worker who alleges workplace harassment and the alleged harasser, if a worker of the employer, are informed in writing of the results of the investigation and of any corrective action taken or to be taken as a result of the investigation.
According to Ontario Ministry of Labour statistics, within 10 months of Bill 132 there was a 132 per cent increase in harassment complaints and a 114 per cent increase in sexual harassment complaints.
The requirement that the employer investigate “incidents” of harassment, even in the the absence of a complaint being brought forward, has had the most significant impact and resulted in a material increase in the number of investigations being undertaken.
In my practice I have felt these changes as well. I am regularly dealing with issues of harassment and sexual harassment either as an investigator or as counsel to employers, and increasingly to individuals who are participating in workplace investigations who want to understand the process and how things will unfold.
As a lawyer, my focus is on the the law, ensuring compliance and that best practices are followed in an investigation. I have become increasingly aware of the impact that investigations are having on day-to-day activities in the workplace and the individuals involved. In many cases, respondents are placed on “administrative leave” pending the outcome of an investigation, which can on occasion be for a period of several months.
What happens when the investigation is over and everyone has to go back to work? What is being done to assist the workplace parties in returnng to a normal, productive working environment?
As a starting point, investigations need to be commenced and finished (with reports delivered) in a timely fashion. In addition, following best practices and treating the participants with respect and creating an environment where they feel comfortable and can tell their story is important.
As counsel to respondents, I have dealt with situations where investigations have gone wrong. Recently I have seen cases where the investigator sees their role as one of gathering evidence to support the complaint rather than that of finding our what actually happened. This may be in response to the news headlines which can result in an underlying bias. This can be dangerous and shut down important areas of inquiry and follow-up which hampers gaining an understanding of what ocurred. It can lead to decisions that result in costy legal proceedings, and in the worst case scenarios, court awards of significant damages. Sometimes an investigator can appear to follow best practices, but lack the essential skills of a good investigator.
Those skills or “hallmarks” of a good investigator include the following attributes:
- Is a good listener.
- Does not jump to conclusions or prejudge the issues.
- Embodies compassion and empathy.
- Has an understanding of the psychological dynamics of workplace harassment.
- Is thorough and uncovers all information necessary to make the proper decision and ensures conclusions.
- Has an understanding of applicable law.
- Has the ability to assess credibility.
- Is fair, objective, neutral and unbiased.
While a lot of investigations may be compliance driven, it is important to not lose sight of what can be accomplished with a well conducted workplace investigation. First, and perhaps most importantly, you can gain an understanding of issues that are adversely affecting the workplace and address them. Second, if the complainant and respondent believe that they have been heard and the process fair and impartial, it is more likely that the complaint can be dealt with in a manner that will allow the workplace issues to be resolved/addressed with the least amount of disruption. Third, if difficult personnel decisions need to be made as a result of the findings of the investigator, a respondent who believes that the process has been fair and proper, and that he or she has been heard, may think twice about litigation. And fourth, if litigation does occur, a proper investigation will increase the likelihood that a decision made in its wake will ultimately be defensible at trial, defeat claims of bad faith and avoid awards of aggravated and/or punitive damages.
Melanie Reist is a lawyer and mediator at Morrison Reist Krauss LLP.