HARASSMENT FOR EMPLOYEES

There is no one singular definition of workplace harassment. Workplace harassment is generally defined as conduct that is known or ought reasonably to be known to be unwelcome. This can include standard things that you might think of as harassment, such as name calling, shouting, or physical contact. Yet harassment can take on many more forms when it comes to the workplace. Unwelcome jokes or comments, bullying, ostracization, or even playing pranks on a colleague can also all be considered harassment. 

Workplace harassment also includes workplace sexual harassment, which despite increased public awareness is still prevalent in so many forms. Kissing, touching, and groping are more obvious forms of sexual harassment, but it can also take the form of leering, unwanted compliments, propositioning, or intentionally intimidating someone. Sexual harassment in the workplace occurs regardless of age, gender identity or expression, or sexual orientation. 

When managers are involved, harassment may take on more subtle forms. Belittling or demeaning employees, setting unrealistic and unachievable goals, singling out employees, or offering unduly harsh or unfair criticism are all forms of workplace harassment that, while less obvious, can still have a significant negative impact on an employee. Moreover, given how much of the workplace has moved online recently, harassment may not always occur in person but can take place through text messages, emails, instant messages, or videoconferencing – all of which is treated exactly the same as if it had happened face to face in person. 

Employment legislation across the country has made it clear that while employers must take workplace harassment seriously, not all management activities will be considered workplace harassment.

Performance management is the prime example. Employers should not be unduly critical of your work, but they may be critical of it, and may offer negative feedback if required. Employers can manage employees as they see fit, so long as they are not unfair or unduly harsh in their actions. If an employee’s work does not improve, employers may institute a performance improvement plan, and may implement discipline up to and including dismissal. All of this is not classified as harassment so long as it is executed fairly and an employee is not being bullied or ‘set up to fail.’

Remember that the law defines harassment as conduct ‘known or reasonably known’ to be unwelcome. An employee making crude comments or telling off-colour jokes in a lunchroom for example may garner laughs from some, but that does not make that sort of conduct appropriate, and it does not mean that it’s not harassment. 

What it does mean, especially if others are laughing, is that the person who was intimidated or made to feel uncomfortable may hesitate to come forward. Employees often feel helpless in the face of harassment, especially if they are worried that no one will believe them or take them seriously. This is why workplaces are required to have a reporting system in place to receive complaints of harassment, so that employees can feel confident that their complaints will be taken seriously and dealt with appropriately. 

Unfortunately this is a particularly difficult type of workplace harassment. Supervisors who harass or take advantage of their power over employees often do so because they feel that they can get away with it, and because they know that an employee will be intimidated against making a complaint. 

When employers are designing their harassment policies, they should always have a secondary reporting person available wherever possible in case the person responsible for receiving complaints is also the alleged harasser. This may be more difficult in smaller organizations, but a secondary reporting person makes sure that an employee feels protected coming forward with a particularly sensitive allegation. 

Additionally, employees should know that employers cannot penalize you for coming forward with an allegation that you have made in good faith. An investigation may not agree with your version of events, but will not punish you if you genuinely believe that there was harassment. 

As the old police saying goes, “if you see something, say something.” Bystanders play a crucial role in helping to prevent workplace harassment. 

All employees should be trained on how to recognize harassment, and the issues that can lead to those behaviours. Employees should be trained on how to get involved safely, without putting themselves or anyone else in danger. They should learn how to safely call out harassment before it escalates. They should also be trained in how to support victims of harassment, as well as vulnerable employees in general.

Most importantly though, employees must be trained on how they can safely report witnessing a colleague being victimized by workplace harassment. Victims themselves may be too frightened to come forward, especially if the harasser is in a position of power, so sometimes a bystander coming forward is the only way to make the situation better.

One of the most important pieces to a workplace harassment policy is the implementation of a comprehensive reporting system. Employers need to have a reliable method where employees can report incidents of harassment, including a designated reporting person who will be able to handle and address complaints. All employers should also have a secondary reporting person in place in case the designated reporting person is the alleged harasser. 

Unfortunately not all employers will be receptive to conducting investigations, but they can face serious legal consequences if they do not take reports of harassment seriously. In Ontario for example, the Occupational Health and Safety Act gives the Ministry of Labour the power to appoint a third-party investigator if the employer does not conduct a proper investigation. Employees should also speak with an employment lawyer about the likelihood of success in bringing a legal claim against their employer, or reporting the incident through their provincial Ministry of Labour. 

The short answer is that your story will be kept confidential wherever possible. Employers must be incredibly mindful when an employee comes forward with such sensitive information. Any reports of harassment, violence, or sexual harassment should be dealt with carefully, not unlike any other confidential information, such as medical records, etc. Employers should be cautious that no one except for necessary individuals should be able to access the information, and it should be absolutely shielded from spreading throughout the workplace.

However, a crucial element of any investigation is giving the accused the opportunity to respond to the allegations made against them. This includes providing them with the necessary detail, ideally in advance of their meeting with investigators, so that they can refresh their memory and are able to provide their complete account of the incidents. That does not mean that an accused’s story will be believed – an investigator will make that decision after speaking with all relevant parties. However, this does mean that an accused will be informed of your allegations, even though they too will be advised to keep everything confidential. 

If you are the employee accused of workplace harassment, the first thing to remember is not to panic. Your employer is responsible for obtaining a full account of the incidents that are alleged to have occurred, and that includes getting your side of the story.

The tricky thing for employees is that employers are rarely experts in this process. They may suspend you with pay during an investigation, which they are within their right to do, but should not be taking any formal disciplinary measures until an investigation has been completed. During an investigation, an employer is responsible for gathering your version of events, which will likely mean interviewing you as part of any investigation, and taking detailed notes. 

It is important for any future discipline that they take proper measures in conducting these interviews. This should include such things as informing you of the allegations made against you ahead of time, so that you have an opportunity to collect your thoughts and can go into an interview prepared. If you are caught completely by surprise, and then asked to suddenly form a perfect recall of events that may have happened months before, you would be understandably nervous when trying to remember small details. Unfortunately, if you appear to be at all nervous, confused, or agitated during your interview, investigators who are not well trained may use this behaviour against you when they assess the credibility of your story. 

When an investigation is concluded, you will not be entitled to a full investigation report. However, you are entitled to know the results of the investigation, including any disciplinary measures that will be taken or other next steps that may be implemented (such as requiring all parties to attend refresher training on workplace harassment). We frequently consult with employees who have been the subject of a poorly-done or ‘botched’ investigation and subsequently disciplined, and in these cases we review every step of the investigation to make sure that discipline was not issued unfairly. 

The truth is that while the laws across Canada require employers to take comprehensive measures to protect employees from workplace harassment, employers are rarely experts in this field. Some employers may be dismissive, especially if there is a systemic problem within the workplace culture, or if alleged perpetrators are longstanding employees. Employers may also not realize that behaviours which may have been ‘laughed off’ or quietly ignored a few decades ago are simply unacceptable today.

If an employer is not taking corrective measures or investigating where required, employees should first consult with an employment lawyer. There may be several options available to make the employer take action, such as proceeding through a provincial or federal ministry of labour complaint, a human rights complaint, or potentially even a civil claim. A lawyer can sit down with you and assess your various options, and where you may have the greatest chance of success. Also, they can advocate for you throughout this process, and can help open your employer’s eyes to the seriousness of the problem.

Lastly, we often encounter situations where a culture of workplace harassment has unfortunately made it impossible for employees to continue in the role. In those cases there may not be a healthy option for the employee to stay within the workplace. We will often work with those clients to assess whether or not they have actually been constructively dismissed – or whether their employer has single handedly decided to no longer honour the terms of their employment – and can assess how to best proceed with those legal claims.