November 20, 2014 By: Janice B. Payne
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The scandal surrounding former CBC host Jian Ghomeshi has brought the issue of workplace sexual harassment back into the spotlight in Canada. The ensuing discussion has provided some valuable reminders to employers about the importance of handling harassment complaints effectively.

Despite the legal protections that have been put in place to protect employees from workplace harassment, including those found in human rights and occupational health and safety legislation, which require employers to provide employees with a safe and respectful working environment, systemic barriers to reporting these incidents remain. This is especially the case where a power differential exists between a harasser and the target(s) of the harassment, or where an employer has an economic incentive to overlook allegations about an influential employee. Employees in entry level positions are particularly vulnerable to harassment, and often reluctance to come forward and report the abuse.

Before any investigation takes place, employers must lay the groundwork to ensure that barriers to reporting harassment are removed. This begins with creating a culture of respect for differences of all kinds that should start at the very top of the organization with a strong commitment from the senior leadership team, and should include proactive training on respect, discrimination, harassment and workplace violence at all levels of the organization. It is also essential for employers to have clear policies and procedures in place to deal with complaints of workplace harassment. These are legislatively required in Canada, and must be followed consistently by the employer.

In order to overcome systemic barriers and encourage reporting, employers must commit to handling investigations properly. As with so many things in the Workplace, effective communication is the key to success. Here are five tips for employers to keep in mind when conducting workplace harassment investigations:

  1. Take Reports Seriously and Respond Promptly

  2. Choose an Appropriate Investigator

  3. Understand Limits of Confidentiality and Privilege

  4. Ensure Investigations are Reasonable and Procedurally Fair

  5. Document Investigations and Take Action

Following the conclusion of an investigation, the employer will need to determine what action to take, if any, based on the findings in the report. In the event that a complaint is unsubstantiated, no reprisal should be taken against the complainant unless there is very clear evidence that the complaint was fraudulent, made in bad faith or malicious. Both the complainant and respondent should be advised of the outcome of the investigation in writing, and there may also be a legal requirement to report the outcome of the investigation to a government regulatory body.

The benefits to employers in handling investigations well include increasing the likelihood that the findings of an investigation will be accepted by the parties involved, minimizing the risk of litigation, and protecting the employer’s reputation. There is also an economic incentive for employers to maintain a safe and healthy work environment, in terms of increased productivity and morale, as well as decreased absenteeism, sick leave and turnover, all of which can be costly.

For more information, please read our full article, Lessons from a Canadian Scandal – 5 Tips for Handling Workplace Harassment ReportingJanice Payne was also interviewed on this subject by Steve Mertl of the Daily Brew for his article, Ghomeshi scandal: How workplace culture and power enables harassment, which was published on November 6, 2014.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law