FTR Quarterly – Issue 9
Date: April 30, 2018
In This Issue
- Sexual Harassment: Best Practices for Proactive Employers and Service Providers
- FTRQ&A – Customer-to-Customer Harassment: Service Provider Liability Questions, Answered
- Tips for Conducting Harassment Investigations
- Sexual Harassment and Your Organization: Best Practice Tips for Boards of Directors
- Featured Lawyer – Patty Murray
- For Your Workplace, At Your Workplace: Hicks Morley’s On-Site Learn-by-Doing Training Programs
Sexual Harassment: Best Practices for Proactive Employers and Service Providers
By: Julia M. Nanos
Workplace sexual harassment is now, more than ever, at the forefront of public discourse. This heightened awareness has put additional pressure on employers to not only ensure that they respond appropriately to complaints of workplace harassment and sexual harassment, but also to ensure that they take appropriate measures to prevent this harassment from occurring in the workplace.
The right to be free from harassment because of sex in the workplace has long been protected in Ontario under the Human Rights Code (Code). Section 7(2) of the Code provides:
Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee. [emphasis added]
In 2017, Bill 132 amended the Occupational Health and Safety Act (OHSA) to include a definition of workplace sexual harassment and to expand employers’ duties to investigate and respond to complaints of such harassment. Section 1 of the OHSA now provides:
“workplace sexual harassment” means,
(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 the solicitation or advance 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 that the solicitation or advance is unwelcome. [emphasis added]
Division XV.1 of the Canada Labour Code contains similar protections and prohibitions regarding workplace sexual harassment that extend to federally regulated workplaces.
Best Practices for Employers and Service Providers
In light of the increased societal and legal pressures on employers to recognize, investigate and prevent workplace sexual harassment, we encourage you to understand and adopt the following best practices:
- Understand your scope of responsibility: Employers have broad responsibilities with respect to workplace harassment and sexual harassment. Assume that the “workplace” includes any location where your organization’s business is being carried out, and other locations such as during business travel, work-related gatherings, or other locations where the behaviour may have a subsequent impact on the work relationship, environment or performance. This might include on social media.
- Raise awareness: It is important to raise awareness and encourage constructive dialogue about workplace sexual harassment. Ignoring the issue and hoping it will never affect your workplace is counter-productive. Minimizing the issue inhibits understanding and change, and could make it more difficult for victims to come forward. This could in fact put your workplace at risk. The time has come to let these conversations happen, even if they are difficult or uncomfortable.
- Provide training: Don’t assume that your staff understand the meaning of “workplace sexual harassment,” the scope of the “workplace,” or how your organization will address complaints. Educate staff about workplace sexual harassment, their rights and obligations, and the importance of reporting and also engaging open and victim-sensitive dialogue.
- Encourage: Foster a workplace atmosphere that is receptive to the reporting of sexual harassment. Coming forward with allegations of workplace sexual harassment is difficult. Employers should encourage reporting from both victims and witnesses. Emphasize that all complaints will be investigated, and will be addressed in a confidential manner to the extent possible. Employees should be made aware that retaliation against victims or witnesses will result in discipline.
- Develop robust policies: No matter the size of your organization, you should have policies and procedures in place regarding workplace sexual harassment. These policies and procedures should:
- Reference the proper definition of “workplace sexual harassment”
- Detail the mechanism by which complaints of workplace sexual harassment should be reported, including a mechanism for reporting complaints to someone other than the employee’s direct supervisor
- Identify that employees may informally raise concerns of sexual harassment and that these allegations will likewise be addressed
- Identify a procedure by which the organization will close investigations, including a mechanism to inform complainants of the results of the organization’s investigation and any corrective action that it may take against the perpetrator
- Identify procedures for the maintenance of confidentiality, to the extent possible
- Identify that there will be no reprisal or retaliation of any kind by the organization in response to complaints that are made honestly and in good faith
- That the organization will impose disciplinary action against any employee that retaliates against another for coming forward with an allegation of workplace sexual harassment.
- Have trauma-informed processes: It is important that victims of workplace sexual harassment not be “revictimized” by the investigation, such as being asked inappropriate questions or asked to unnecessarily repeat traumatic details of their story. Investigators should complete sensitivity training specific to the issue of sexual harassment. Alternatively, consider hiring an external investigator who possesses this expertise.
- Act promptly: It is important to respond to allegations of workplace sexual harassment as soon as they are brought to your attention. Delay only exacerbates the problem and leaves the organization exposed.
- Take complaints seriously: All complaints must be taken seriously, whether or not the allegations are filed in a formal complaint. It is equally important that your organization be seen to have taken a complaint or allegation of workplace sexual harassment seriously. Perceived indifference or reluctance will only exacerbate the problem and discourage future reporting.
- Offer quick and effective accommodation: Immediately upon learning of alleged sexual harassment in the workplace, consider what measures can be taken to accommodate the concern while the investigation is being completed. This might include temporarily altering reporting relationships, work locations, relieving the victim from attending work, or perhaps even suspending the alleged perpetrator with pay pending the outcome of the investigation. Don’t wait until the investigation is complete – if the allegations are founded, it will be too late.
- Take an intersectional approach: Workplace sexual harassment comes in a variety of forms, and will affect every individual differently. When investigating incidents of workplace sexual harassment, or when considering what accommodations to offer in support of a victim, consider whether other grounds under the Code might apply and how that will guide your approach and response.
- Lead by example and ensure consistency: Managers and supervisors should model appropriate workplace behaviours and foster a positive, inclusive work atmosphere. Your organization’s expectations should be uniform across the organization, and its response to violations of its workplace sexual harassment policy should be consistent, no matter what position the perpetrator holds.
FTRQ&A – Customer-to-Customer Harassment: Service Provider Liability Questions, Answered
As we recently reported, the Divisional Court weighed in on the question of whether a service provider was liable for harassment issues arising between its customers. We asked Toronto lawyer Paul Schwartzman to address common questions service providers ask about their obligations and best practices for ensuring compliance.
Q: Should we adopt a code of conduct for customers?
A: You could, so that customers are aware that a service provider takes these issues seriously, but there’s no evidence to suggest that adopting a code of conduct is going to eliminate these types of incidents. The focus should be on ensuring employers are providing their employees with practical training on how to properly respond to a complaint made by one customer against another customer.
Q: Are we required to monitor customer behaviour?
A: I don’t think you need to go so far as monitoring it – which could also raise privacy issues – but you certainly can’t ignore or turn a blind eye to it. Service providers need to be aware of what’s going on, and if you hear of a complaint, or witness an inappropriate outburst, you need to have the proper protocols in place to address the situation. You cannot simply dismiss it.
Q: Are we obligated to investigate all complaints by customers?
A: For complaints of harassment or discrimination, an investigation should take place given the Divisional Court’s statements requiring service providers to take prompt, effectual and proportionate action. Not every single complaint requires a “full investigation,” but a procedure needs to be in place to address any customer complaint. It also makes good business sense to do so.
Q: Is liability to a customer the same as liability arising from harassment between employees?
A: Not necessarily, because the duty of care a service provider owes to a customer is arguably different from that which it owes to its own employee. Nevertheless, actual liability will depend on the policies and procedures the employer has in place, what it knew about the alleged harassment, what it ought to have known, whether an investigation was conducted, and the nature of the allegations raised by the complainant. These factors are the ones similarly used in the employment context, but the extent of liability that a service provider has to its customer remains to be seen.
Q: What training obligations do we have with respect to customer harassment issues?
A: Every service provider needs to have a protocol in place to deal with any allegations of harassment or discrimination by a customer. Every employee who is interacting with customers needs to be trained and aware of how to enforce the relevant protocols to ensure that the employer’s obligations are complied with.
Tips for Conducting Harassment Investigations
By: Anna V. Karimian
Employers have a duty to take reasonable steps to address allegations of harassment in the workplace. The duty to investigate is the “means” by which employers ensure that they are meeting their statutory obligations of operating a harassment-free workplace.
The quality of a harassment investigation is a key consideration for every employer. Well-executed investigations can place the employer in an advantageous position in the face of litigation; poorly conducted ones will be scrutinized by decision-makers – and may result in potentially significant financial liability.
In developing an investigation plan and conducting an investigation, employers must focus on achieving the dual goals of providing fairness to both the complainant and the respondent, and reaching a substantiated and reasonable conclusion to the investigation. In this article, we set out some best practices that would apply to any harassment investigation and support employers in ensuring compliance.
- Respond promptly and treat each complaint as genuine. Prolonged investigations can add to the already emotional angst that both complainant and respondent may be suffering from – and delaying the investigation may allow harassment behaviour to continue unabated.
- If there’s a collective agreement, consult it to determine what rights the union has to participate in the investigation.
- Are interim measures required to address immediate concerns of the complainant, the respondent or the workplace? For example, can the employees work at different sites to prevent any further action that may give rise to an harassment complaint.
- Where an investigation is warranted, consider whether it should be conducted by an external investigator or internally. There may be circumstances where an external investigator may be preferred. Factors to consider include the investigator’s previous involvement in the issue, the rank of the complainant or the respondent being investigated, and whether there is pending or threatened legal action that raises the stakes for the investigation.
- Where the investigation is conducted internally:
- Ensure that the investigation, and the investigator, are unbiased, fair and “are seen” to be fair – appearance matters!
- Formulate an investigation plan: before beginning the investigation, understand the context and the nature of the allegations and any applicable policies or documents, identify interviewees and determine interview logistics
- Keep in mind when conducting the investigation and writing the report that the information may have to be disclosed in possible subsequent proceedings.
- Advise the parties of investigation timelines, the extent to which confidentiality will be protected, their duty to co-operate in the investigation and their right to have representatives present, if requested
- When conducting the investigation:
- ensure the investigation complies with any procedures set out in a workplace policy
- ensure that the respondent is aware of the nature of the allegations and that they have enough information to respond meaningfully to the allegations and that they are be given an opportunity to do so
- conduct follow-up interviews as necessary if new information comes to light after you have already spoken to certain witnesses
- remember that the investigation is not complete until you have confronted the complainant/respondent with any contradictory evidence and provided them with an opportunity to respond.
- Consider all evidence and its relevance and assess the credibility of the witnesses
- Ensure that the investigation report is concise and includes all relevant evidence,
- After reviewing report, the decision-maker should consider appropriate corrective action and act decisively.
Hicks Morley offers investigation training workshops designed to provide human resources professionals with the skills required to respond to harassment allegations in the workplace. Ask your regular Hicks Morley lawyer for details.
Sexual Harassment and Your Organization: Best Practice Tips for Boards of Directors
By: David S. Alli
In the Canadian corporate context, a Board of Directors has a duty to oversee the management and affairs of an organization and the senior leadership team. Legally, that is not the same as being directly involved in the day-to-day management of the corporation. The role is one of informed oversight ensuring that senior management is effective and qualified and that management is prepared to act on a set of Board reviewed and approved human resources policies and procedures.
Boards have an obligation to ensure that adequate sexual harassment and reporting mechanisms are in place to facilitate an intake process, an investigation and a report on any incidents. If a Board knew or ought to have known that sexual harassment was occurring in the workplace, and took no steps to remedy it, there could be liability attaching to the Board itself.
Here are some tips to consider when conducting a review of your policies and procedures:
- Review and update your current policies or create new policies on sexual harassment and violence in the workplace. Stay current with legal developments by ensuring that staff are conducting an annual review of your policies and procedures.
- Ensure that there is a reporting structure to handle complaints, including an avenue to take if the alleged harasser is the supervisor or manager.
- Ensure that your organization’s complaint process sees that investigations are conducted in a thorough and timely manner and that the process strives to preserve confidentiality as much as reasonably possible. Once concluded, the complainant and respondent must be informed of the results and any corrective action taken.
- As an extension of Board due diligence, consider having the organization hold an information session where an expert can discuss with employees, managers – and even Directors – what behaviour can constitute sexual harassment. Very often, people have a narrow view of what can be considered sexual harassment and getting clarity on the definition, with examples provided, can promote a better understanding.
- Avoid stepping into an “operational role” as a director and becoming overly involved in any complaint or investigation. While the Board may want to lend support, generally, the role of the Board is to provide oversight. Leave the investigation up to those with the specific mandate.
No two organizations are the same. What works for one Board may not necessarily work for all. Approaches need to be tailored to each organization. Nevertheless, these tips are a good place to start when thinking about how to provide a sexual harassment-free work environment.
Patty G. Murray
Patty Murray is an experienced labour and employment lawyer in Hicks Morley’s Toronto office with specific expertise in human rights matters, including various forms of discrimination and harassment. Patty helps private and public sector employers and service providers develop and implement human rights policies and practices, and regularly litigates human rights matters at arbitration and at the Human Rights Tribunal of Ontario.
Patty is a senior partner in the firm’s Human Rights practice group and is a frequent speaker on issues of human rights to human resource professionals. She served as the co-chair of the Practice Advisory Committee at the Human Rights Tribunal of Ontario for over six years.
For Your Workplace, At Your Workplace: Hicks Morley’s On-Site Learn-by-Doing Training Programs
Hicks Morley delivers convenient, customized hands-on training for your employees – at your premises – on a wide variety of topics designed to help your organization minimize potential liability. Whether you are looking to train supervisors and managers about sexual harassment, educate management about new legal developments, provide broad-based information sessions for employees to raise awareness, or coach frontline HR professionals on response protocols using scenario-based exercises, let us develop a program to meet your needs. We also conduct statutory compliance audits of your existing policies and protocols.
Discover our suite of full and half-day workshops geared towards your frontline HR Professionals:
Workplace Investigation – HR Professionals charged with investigating workplace incidents learn how to:
- organize and conduct an efficient and effective investigation
- get the most (and best) information out of witnesses
- collect, use and assess evidence
- avoid claims and allegations that the investigation is flawed or biased, or breaches privacy
- best ensure that their investigation will hold up under the scrutiny of a decision-maker
- write the report and conclude the investigation.
Accommodation – Frontline HR Professionals gain the knowledge and practical tools they need to address and manage accommodation issues in the workplace through instructional components on key accommodation principles, best practices and common pitfalls, as well as case scenarios focused on specific “hot button” accommodation issues relating to disability, family status, religion and gender identity and expression.
Attendance Management – Learn key legal principles and tips on drafting a successful attendance management plan to fit your organizational needs, and gain an understanding of the issues related to the balancing and management of medical information with the employee’s right to privacy and accommodation of complex issues or disabilities. Practical issues around fitness to stay at work, the administration of an attendance management program and termination for non-attendance at work are also covered.
Compliance Audits – Ensure the protocols and policies you already have in place reflect recent developments in the law. From new statutory compliance obligations to the most recent employment and labour cases on employer and service provider duties, our “health checks” are designed to keep you current – and compliant.
Contact your Hicks Morley lawyer to register for an upcoming session, schedule an audit or discuss your training needs.
The articles in this Client Update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©