Recent high-profile sexual harassment cases demonstrate the devastating impact on individual employees, as well as the fallout to an organization when a culture of harassment is permitted to exist. We all agree that legislation designed to eradicate harassment in the workplace and protect employees should be implemented without delay.
What is unclear is how this additional legislative protection will, in practice, impact the workplace. From an employer’s perspective, while no organization would question the importance of ensuring a harassment-free workplace, the additional obligations and powers that may come with increasing legal obligations, not to mention potential financial and human resources costs, raise a host of concerns.
In Ontario, Bill 132, also known as the Sexual Violence and Harassment Action Plan Act, will come into effect in September, signalling a continued and aggressive legislative response to the problem of workplace harassment. The legislation broadens the definition of workplace harassment to include “sexual harassment” and expands the obligations on employers with respect to workplace harassment policies. Employers are required to review and update their written policies and/or programs to ensure that they deal with how investigations and privacy concerns will be balanced. Requirements include: how information about an alleged incident is to be obtained (including information about any individuals involved); when and how any information will be disclosed; how the worker and the alleged harasser (if the latter is a worker of the employer) will be informed of the results of the investigation; any corrective action that has been or will be taken; and the inclusion of measures for the reporting of harassment where the individual designated by the employer for the reporting of the harassment is the alleged harasser.
Perhaps of greatest interest is the power Bill 132 provides to inspectors with respect to investigations. They can order an employer to retain an impartial third-party investigator, at the employer’s expense, to conduct an investigation into a complaint of workplace harassment.
Investigations are often critical in determining whether an allegation of harassment can be sustained. They provide an impartial third-party review and inquiry of the circumstances involved in an allegation of harassment and, depending on the nature of the retainer, a summary of factual and/or legal conclusions.
However, the obligation to provide an investigation in most if not every case raises real practical concerns, such as cost, timing, and the impact on other employees. The precise threshold required for a formal investigation is unknown and employers may feel a significant human resource strain.
What is clear is that for both employers and employees, the stakes have never been higher. Failure can result in a workforce that may lose faith in the employer’s ability to provide a harassment-free working environment, which leads to poor morale, higher absenteeism, and employee disengagement. For employers, there is the possible legal liability of an improper or insufficient investigation and the litigation it may create.
The best approach is to be proactive, ensure compliance, and implement a process that is fair, responsive, and will assist in protecting against frivolous claims and charges. Time will tell how the courts and administrative tribunals judge employers’ efforts in this area, but in the meantime, here are some helpful tips:
• Be compliant: Review and implement any legislative requirements. Assess risk for all forms of harassment, violence, and domestic violence in the workplace;
• Improve/develop a policy: Address each risk and how it will be dealt with while respecting the privacy rights of all employees involved. Bring in the joint health and safety committee, supervisors, and experts if necessary;
• Develop an action plan to address the process for the investigation of complaints, the assessment of risks, and consequences of non-compliance;
• Understand the investigation process: The risk of conducting a flawed or improper investigation is considerable. In Ontario, an officer may order an investigation based on his or her review of the circumstances. Where appropriate, this may mean a third-party investigator at additional cost;
• Don’t pre-judge: Consider the evidence carefully. Don’t assume. Make rational decisions based on available information and evidence.
• Be compassionate: Allegations of harassment/violence are difficult to make and can be devastating on both the victim and the alleged harasser.
Lorenzo Lisi is a partner at Aird & Berlis LLP.