If it wasn’t evident before, it should be now – CBC/Ghomeshi, Dalhousie Faculty of Dentistry, Canadian Armed Forces, the Canadian Olympic Committee, the Justice Camp inquiry – sexual harassment and sexual stereotypes are pervasive in our society and no workplace, no matter how sophisticated you might think it is, is immune. Your workplace has to have a plan to prevent sexual harassment and to effectively deal with complaints of sexual harassment. And it won’t just be direct victims of sexual harassment who will insist on a harassment-free workplace: other employees who are offended by a workplace poisoned by sexual harassment will come forward and will have the right to complain. And so they should.
As an employer, you have a three-part duty when it comes to preventing sexual harassment in the workplace and responding to complaints about sexual harassment:
- Prevention and Education
- Quick Response/Protection of Employees/Investigation
- Resolution/Communication to Parties
- Prevention and Education
At a minimum, you need an up-to-date policy that sets out the definition of sexual harassment, describes what is prohibited conduct, and provides clear direction for how to file a complaint.
You also must provide training to your managers and employees, which includes familiarizing them with the sexual harassment policy and the complaint and investigation process, education on employees’ right to have a workplace free of sexual harassment, and the employer’s obligation to take all reasonable steps to provide such a workplace.
New employees must receive this training, and all employees and managers should receive refresher training regularly.
- Quick Response/Protection of Employees/Investigation
In order for you to comply with your duty to provide a workplace free of sexual harassment, it is critical that you, as an employer, respond quickly to complaints of sexual harassment. If sexual harassment has in fact occurred, the longer it goes unaddressed, the worse the potential adverse effects on the complainant and on the workplace as a whole. And the worse your potential liability.
Pending the (timely) investigation of the complaint, you must ensure that the complainant and the respondent are reasonably protected: the complainant from potential further harassment, the respondent from potential further allegations of harassment. This may, but not always, require moving the respondent or placing the respondent on a leave with pay. Another reason to carry out the investigation promptly.
The investigation must be quick and competent. Depending on the individuals involved (e.g. the respondent is the CEO) or the nature of the allegation (e.g. it includes allegations that might also constitute sexual assault), you may have to consider retaining an external investigator. The investigator should have training and experience in areas such as questioning techniques, credibility assessments, the standard of proof, procedural fairness and an employer’s legal obligations under the common law, human rights legislation and occupational health and safety legislation.
- Resolution/Communication to the Parties
This is an area where many employers get a failing grade. It is absolutely crucial for you to communicate the results of the investigation to the complainant and respondent, while respecting privacy and confidentiality as much as possible. The complainant may not have the right to know whether the respondent has been disciplined, or if so, what the discipline was. However, the complainant has the right to know whether his or her allegations have been found to be made out, and if so, what the employer intends to do to provide him or her with a harassment-free workplace.
The principles above apply equally to gender-based harassment: behaviour that reinforces traditional heterosexual gender norms or traditional sex stereotypes.
For a cautionary tale about sexual and gender-based harassment, take a look at a 2014 Nova Scotia Human Rights Board of Inquiry decision in Graham v. Shear Logic Hairstyling.
For more information about preventing and responding to workplace sexual harassment, contact Gail Gatchalian.