Don’t Turn a Blind Eye! Employer Best Practices for Preventing and Responding to Allegations of Harassment in the Workplace

Are we losing count of the stories about powerful people who abuse their authority over the careers of others? Why are we still hearing about more cases? Hasn’t it been nearly 3 years since these horrible stories first started hitting the news?

Some employers think this conduct will stop because of the publicity associated with the high-profile stories.

The frequency and gravity of the continuing reports are now testing this naivete. The data is unequivocal. Statistics show that employees are still reporting harassment at staggering levels – and these are just the reported cases.

On a human level, we know that harassment is wrong. Where this human response translates into legal duty is that employers have a responsibility to prevent and address harassment in their workplaces. Left unfulfilled, there can be repercussions not only to an employer’s reputation, but to their bottom line.

Where does the duty come from?

In Manitoba, there are multiple legal sources of the duty to prevent and address harassment and sexual violence, including:

The Workplace Safety and Health Act (the “WSHA”). The WSHA gives every worker the right to work free of harassment. The legislation establishes specific obligations on employers. The threshold obligation is all Manitoba employers are required to develop a respectful workplace and harassment prevention policy (“RW policy”) and ensure it is followed.

The Human Rights Code (the “the MBHR Code”). The MBHR Code not only prohibits harassment, but also creates a statutory liability for employers when its employees and contractors, and even customers and members of the public, harass their staff. The MBHR Code requires employers to take positive steps to terminate the harassment towards its employees.

The Canada Labour Code. In federally regulated industries and in within the federal government, Bill C-65 recently amended the Canada Labour Code, enacting rigorous requirements to protect staff in this system.

The Advanced Education Administration Act. Post secondary institutions are required to implement a policy that includes provisions respecting the prevention and reporting of incidences of sexual violence.

Collective agreement provisions. In unionized settings, most collective agreements contain no harassment and no discrimination provisions, imposing duties on employers.

Duty to Investigate

Most RW policies contain provisions requiring employers and institutions to not only provide a respectful workplace but also to investigate complaints. In some provinces this requirement is statutory.  Recent amendments to Ontario’s Occupation Health and Safety Act and the Canada Labour Code require that employers investigate incidents of workplace harassment. Similar amendments have been put forward in Alberta and British Columbia. Manitoba employers: Watch these developments.

What is harassment?

Definitions of harassment are broad and capture a range of conduct. Harassment can take a wide number of forms, and definitions include: A demeaning comment or an action that undermines a person’s dignity or bullying, based on a single or a lengthy course of dealing.

Most of the time, harassment is alleged to have been inflicted by a specific and identifiable person on another identifiable person. Employers beware: Creating or contributing to a “poisoned” or “toxic” workplace can also be considered harassment, whether or not attributable to a specific individual.

Employers need to know that no two cases of harassment will be identical, and that a diverse set of conduct can constitute harassment.

What’s the risk of ignoring it?

An employer who fails to properly address workplace harassment can be subject to significant consequences.

As neutral investigators, we are called in to investigate complaints, and can also be called upon to provide recommendations relating to systemic matters. We do not provide recommendations for discipline or related consequences. Individuals or their unions may rely on our investigations in a future legal or grievance proceeding; and employers may rely on our reports to justify discipline arising from the events in question. These legal processes can result in significant reputational and financial consequences to the parties.

The employer’s duty to implement an RW policy and to follow it can also result in legal consequences under the WSHA. If an employer fails to properly implement an RW Policy, or abide by its policy, it can be ordered to improve its conduct – called an “Improvement Order”.

What should employers do?

What should an employer do to satisfy itself that it is meeting its legal obligations?

  1. Lead by example: Employers must promote their commitment to maintain a work environment free of harassment. This should be fostered through the promotion of diversity, inclusion, and respect for all employees regardless of prohibited grounds listed in RW policies (which normally include: race, creed, religion, colour, sex, sexual orientation, gender-determined characteristics, marital status, family status, source of income, political belief, political association, political activity, disability, physical size or weight, age, nationality, ancestry or place of origin).
  2. Accountability: Employers must demonstrate to their employees that workplace harassment is taken very seriously, by responding to every instance of harassment (whether reported or suspected), through well-defined workplace processes.
  3. Policies: Employers should ensure compliance with their legal duty to develop and maintain a workplace harassment policy. The duty doesn’t end by implementing a policy. Employers must also:
    1. Provide all employees with a copy of the policy.
    2. Post policies in a central and accessible location.
    3. Ensure the policy details clear and defined avenues for reporting instances of harassment.
    4. Review and update policies on a timely basis.
  4. Training: Employers must conduct regular and mandatory training sessions on respectful workplace policy and procedures for reporting, investigating and resolving harassment complaints.

Recruiting and retaining talented staff is one of an employer’s biggest challenges. In the current landscape, aside from legal risk, no employer wants to become known as “that employer” who looked the other way when it knew (or should have known) about harassment in its workplace.