Sexual Harassment in the Workplace

Dealing with the issue of harassment isn’t just optics

By Lorenzo Lisi

Organizations that are not ready to address harassment and sexual harassment (whether in the workplace, on social media or even outside of work hours) risk the viability of their workplace.

Good employees may leave, the company’s reputation could suffer and business could decline.

So how do we address harassment in the workplace? This article will explore how is it defined and what employers can do to make sure its workplace is harassment free

Definition

The legal definition of harassment is, “a course of vexatious comment or conduct that is known or reasonably to be known to be unwelcome based on one of the prohibited grounds.” The translation: Doing something to someone else that disturbs, annoys or distresses them and something that you know or should have known that they didn’t like.

Sexual harassment in the workplace occurs when there are unwelcome sexual advances and/or threats of reprisals for the rejection of sexual advances made by a person in a position to grant or deny a benefit to an employee. The harassment can be verbal, physical or visual. It may be conduct or comments that happen over time or it may be one incident which is so bad that it constitutes harassment.

So where is the “workplace?” It can be within the four walls of the establishment, an off-site meeting, a gathering for business or any other event or place related to employment, even if outside of normal working hours. It can also be, at times, on social media where the relationship between the parties arises from work.

The Legal Framework

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.

Sexual harassment on the basis of any prohibited ground under human rights legislation (for example, sex, sexual orientation, gender identity or expression) is a violation of the legislation. Depending on the severity of the conduct, it may also be a criminal code offence and the basis for a claim at common law. Individuals who complain about harassment are protected against retaliation, threats or reprisals for filing a complaint, asserting a complaint or testifying about harassment.

While employees are not expected to prevent or control the behaviour of an alleged “harasser,” most employment harassment policies contain provisions which ask that the employee bring to the attention of the individual who is acting inappropriately to stop their conduct, or if that is unsuccessful, report the conduct to the company; usually through human resources. The intent of this requirement is to ensure that employment disagreements over conduct don’t escalate automatically to a complaint if the parties can address it themselves. However, serious conduct is expected to be reported; not doing so ties the hands of the employer who is trying to ensure a harassment-free workplace.
When allegations of harassment arise, 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.

The “Harassment-Free” Workplace

Claims of harassment, if proven, can be damaging to an organization. Not only financially, but from a morale, productivity and workplace culture perspective. 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 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/manager might be involved in the complaint.
Be Ready. Employers should have appointed members of HR/legal counsel (or if there is no in-house legal counsel, external counsel) who are at the ready to deal with complaints of harassment. This should include identified contact names and a protocol concerning internal communications, including what might be treated as privileged. Being organized removes delays in starting the process, which is critical where there are issues of harassment.
Assessment. Prior to the investigation, conduct a contextual review of the workplace and the individuals involved. Are there any specific factors about the respondent (alleged harasser) or complainant that need to be taken into consideration before decisions are made as to what will happen during the course of an investigation? What interim steps will be taken to deal with the complaint, particularly where the alleged harasser and the complainant remain at work in the same environment? Simply sending the alleged harasser home without assessing the necessity of that step or the potential impact on reputation, may end up in future liability if no harassment is found to exist.
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 an 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:
1. 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.
2. Appropriate training for the investigator(s). Simply asking questions and taking answers is not necessarily appropriate. Investigators should be trained and expect to provide a clear and concise report of their findings.
3. Be confidential where possible. However, 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.
4. Consider the results of the investigation and act appropriately. Is discipline/termination necessary? Workplace training? Mediation amongst the parties? Carefully consider options and consult HR/legal counsel on next steps.
5. 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 direct in the response and available to deal with and answer any inquiries.
6. Manage the fallout. Investigations are time consuming and disruptive. They take their toll on the workplace and often pit one employee against another. Have a plan for not only communication, but for dealing with questions and upset employees; healing may take time. Be open about the organization’s willingness to move forward and work towards a harassment-free workplace. Also have resources available for both the victim and the alleged harasser if they return to work.
7. Train your employees, managers and supervisors, and update your training plan annually.

Dealing with the issue of harassment isn’t just optics. It’s about maintaining a workplace where employees are (and feel) safe from any threat of harassment, including sexual harassment. The benefit is a more productive and efficient workplace, resulting in a better bottom line, excellent employee retention and a strong reputation. And who can argue with that?

Lorenzo Lisi is a practice group leader with Workplace Law Group Aird & Berlis LLP. Attend his presentations, “Diversity and Inclusion in the Workplace: Nurturing Your Business and Maintaining the Law,” on Jan. 30 at 11 a.m. and “The Implications of the Sexual Violence and Harassment Action Plan Act on Your Workplace,” on Jan. 30 at 3 p.m.