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Frequently Asked Questions

HARASSMENT FOR EMPLOYERS

No employer sets out to intentionally harass employees. No hiring manager will recruit workers specifically for the purposes of bullying them, or for setting them up to fail. Yet the reality is that harassment is often unintentional, and can be less obvious to a casual observer. It may not come from an employer or manager directly, and it may not happen out loud where everyone can see.

Even if an employer may not have a hand in harassment directly, they are still responsible for maintaining a safe workplace for their employees, and that includes a workplace that is harassment free. Whether the employer is an individual small business owner or a multinational corporation, allowing harassment to happen in their workplace is a serious problem. There are critical steps that employers can take to help prevent harassment, and ways to deal with it appropriately when it happens. It’s when employers fail to do either of those two that they quickly find themselves in peril.

We frequently advise employers on workplace harassment issues, and are happy to share some of the most frequently asked questions that come our way:

What does harassment in the workplace look like?

Workplace harassment can take on many different forms, some of which you may not even realize count towards workplace harassment. Workplace harassment does not always mean openly bullying someone in a group setting, or calling them offensive names and slurs. It can actually be far more subtle than that, but just as damaging. 

Harassment can easily occur between co-workers, often in the form of inappropriate jokes, or subtle jabs or comments. Workplace legislation usually defines harassment as conduct that is “known or reasonably known” to be unwelcome, so a victim does not have to expressly label it as harassment to make it so. Ostracizing or excluding a coworker intentionally from group activities could also constitute harassment depending on the circumstances. 

Workplace harassment can come from the management end as well, but may create a finer line. Simple performance management is not harassment (see below), but harassment may often come from managers in the form of more extreme performance management, often in a style that sets employees up to fail. Overly harsh or demeaning feedback, constant negative and belittling criticism, setting unrealistic or unfair expectations for work, continuous micromanagement meetings, or simply holding an employee to a wildly different standard than their colleagues at the same seniority could all be considered forms of harassment.

It is important also for employers to note that since the pandemic many forms of workplace harassment have simply moved online. Most employers adopted new leniencies to adjust to working from home, but frequent and unnecessary video meetings, continuous after-hours emails from management, and unwelcome comments over an individual’s on-camera appearance have now become common forms of harassment where they may not have been as prevalent before 2020. Similarly, virtual harassment such as via text, instant message, or in a video meeting still constitutes harassment if the conduct is or is reasonably known to be unwelcome. 

Is sexual harassment part of workplace harassment?

Yes, and it is a prevalent one as the #MeToo movement has demonstrated in recent years. In Ontario for example, the Occupational Health and Safety Act was revised in 2015 to include workplace sexual harassment along with the definiton of workplace bullying and harassment, and other provinces maintain a similar standard in their occupational health and safety laws. 

Similarly to other workplace harassment, sexual harassment may not be as obvious as some might expect. Inappropriate jokes, leering glances, and unwanted touching may all be more obvious and straightforward examples of workplace sexual harassment. There are however even more common subtle forms, such as unwanted and repeated affection or attention, unwanted compliments or attempts at flattery, or repeatedly attempting to ask out a colleague all constitute workplace sexual harassment as well. Also this is not exclusive of any gender – individuals may perpetrate workplace sexual harassment no matter their gender identity or expression, or sexual orientation.

What does not count as harassment?

While rarely are workplace harassment complaints falsified, the reality for employers is that employees may not always understand what conduct is actually within bounds. 

For example, while extreme forms of performance management may constitute harassment, this does not mean that all performance management immediately falls under that umbrella. Health and safety legislation explicitly states that reasonable management activities will not constitute harassment. For employers, it means that they should not need to worry about providing critical or constructive feedback, so long as they are doing so fairly. 

The unfortunate reality is that not every employee will succeed in their role. Implementation of a performance management plan or performance improvement plan is also not harassment so long as it is done in good faith. If the employee is not successful after this, an employer can still elect to let the employee go, although in most cases this would be a termination without cause. 

How will we know when harassment has taken place?

The reality for employers is that they may not always be there to witness an incident of harassment. There is no flashing neon light that goes on every time an employee makes a crude joke or conducts themselves in a way that is inappropriate. 

Employees must have a way to confidentially and discreetly report incidents of harassment so that employers can investigate as necessary. Employers are responsible for taking charge of the situation as soon as they become aware of a problem. In any workplace there should be multiple reporting options so that employees can report incidents without additional hassle and so that there is an alternate recourse in case the primary designated individual is also themselves the subject of a complaint. 

How should we handle an incident that is brought to our attention?

The worst thing that an employer can do when learning of a complaint of harassment is nothing at all. While employers may not be able to control every employee’s behaviour at all times, they always have control over how they respond to incidents and whether or not they took quick, decisive action. 

Employers need to have a comprehensive plan in place for dealing with incidents as they arise. These plans should include what the immediate next steps will be as soon as an incident is brought to attention, how to assess what sort of investigation procedure is needed, who will be called in if a third-party investigator is required, how will the complainant be handled during an investigation, and how details will be kept private from colleagues. 

Before taking any rash actions without fully knowing the consequences (i.e: terminating someone’s employment before receiving full details), consult an employment lawyer to make sure that you are taking the appropriate steps. As we wrote about after the Harvey Weinstein scandal broke in 2017, sexual harassment can no longer be seen as a “cost of doing business.”

Will we need to hire a third party investigator?

Employers are sometimes hesitant at the potential costs of hiring a third-party investigator, but sometimes the failure to do so can prove significantly more expensive. 

Occupational health and safety legislation generally states that employers must conduct investigations into incidents that are “appropriate” given the circumstances. In reality this means that smaller, isolated incidents will likely not need a full third-party investigation, but rather a simple confidential conversation with both parties to sort out what had happened and potentially impose discipline.

However, these sorts of investigations become significantly more complicated either for more serious accusations (violence, sexual assault, etc.), or if there is a smaller workplace where the accused and the employer have a close, long-lasting relationship. The crucial element to investigations is that they are impartial, and obviously an investigator cannot be expected to be impartial if they are closely tied to an alleged offender. 

While lawyers can be investigators, investigators do not need to be lawyers, and we regularly bring in third-party investigators to assist our clients. That allows us to take a full overview of all of the evidence gathered during the investigation, and helps us to look at the bigger picture when advising on your next steps.

Can we terminate someone with cause for harassment?

The short answer is potentially, but it depends on the circumstances. 

In most incidents of harassment, especially if they are isolated and there is no serious or lasting harm, terminating an employee with just cause for dismissal would be an unreasonable reaction. That does not mean, however, that an employee cannot be let go without cause. Employment can be terminated without cause at practically any time for practically any reason as long as an employee is paid reasonable notice. 

There are, however, incidents where termination for just cause may be appropriate. Serious incidents of violence or harassment where conduct is extreme may be justifiable by an employer to warrant just cause for dismissal. Similarly, employers can outline in their workplace policies that penalties for repeated discipline can include just cause for dismissal. Recent Ontario law however has shown that even in most just cause cases, employees will still be entitled to receive their minimum payments guaranteed under employment standards law. 

What if we learn that a harassment complaint was falsely made?

First off we need to be clear: false complaints of harassment, especially of sexual harassment, are rare. While an employee may be sharing their version of events as they remember them, it is unlikely that their story is completely fiction. 

However, that does not mean that employers need to take employees automatically at their word. There are situations that arise where an employee will make false allegations in bad faith, usually to punish an individual who they feel has wronged them. Naturally since it is so important to take complaints seriously, complainants automatically receive the benefit of the doubt. However, employers should always conduct whatever investigation is necessary before taking disciplinary action against an accused.

If an investigation proves concretely that an allegation was made falsely in bad faith, employers can penalize complainants for such conduct.

Should we have any policies in place?

Yes! In several provinces occupational health and safety legislation actually mandates that workplaces institute a proper harassment and violence policy, usually including workplace sexual harassment under that definition as well. 

While the legislation itself does not say exactly what form these policies must take, there are other rules, such as training staff on these policies, making sure they are readily available for reference, and making sure that they are updated semi-regularly. This policy should clearly define harassment, and set out how an individual can make a complaint of harassment. The policy should also outline how any reported incidents will be dealt with, including what investigation procedure will take place, and how anyone involved may expect to be dealt with.

A workplace harassment policy should never just be a ‘nice to have’ that sits in a drawer for years. These are living, breathing policies that need to be followed closely in order to properly protect your workplace in the event of a legal claim. While provincial labour ministries may be able to offer sample policies, it is always best to work with an employment lawyer to tailor and implement a policy that properly protects your business.

How should we train employees to be aware of harassment?

Training employees on workplace harassment goes hand in hand with having strong workplace policies. Employees should be keenly aware of what does and does not constitute harassment, so that they know when to report genuine incidents but also know not to report simple examples of performance management feedback.

Most importantly out of the training is that employees should know how they can safely and confidentially report any incidents of harassment, especially knowing that any such reports will be investigated as required by policy. For decades employees had been concerned about coming forward about such incidents, especially when sexual in nature, for fear that it would not be dealt with or taken seriously. Having a thorough policy in place, training employees on such policy, and holding to that policy is one of the best ways that employers can protect themselves from being accused of mishandling any incidents that do arise.

Everything runs better when the workplace is free from harassment. At Rudner Law we regularly assist employers in preventing workplace harassment where possible through policies and training, and dealing with incidents that do arise through thorough investigation procedures.

Remember, when it comes to harassment, the biggest mistake an employer can make is to ignore the problem completely.

Contact us today.

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