Many employers have Harassment Policies. They are mostly well-intentioned.
Often, a Harassment Policy will set out the general principles of behaviour that is no longer acceptable in the workplace. There will be a mechanism for filing complaints. Generally, an internal or external investigation will be available to determine the facts and legitimacy of the complaint. Once the facts are determined, it is up to the employer to complete the task and to comply with the Policy.
The employer needs to know what the facts are so they can determine what the remedy will be. Assuming that there is a clear finding of harassment, the employer’s focus must turn to the harasser.
How does the employer deal with a harasser?
There are a number of different solutions available to the employer:
- Change of work location
- Strict work conditions
The options are numerous.
All the eyes focus on the harasser. However, the person affected, the harassee, is often left behind. The harassee is most often a second thought. Employers may say “don’t forget about the harassee”, or “we must check on the how the harassee is doing”, but that is insufficient.
In reality, the harassee always comes second. The harassee is always the one who “pays the price”. The harassee is the one who now feels uncomfortable in the workplace, cannot look the harasser in the eye, cannot work with the harasser ever again, and cannot be alone with harasser. The harasee is always looking over their shoulder to make sure the harasser is not about to victimize them again.
The harassee’s world is turned upside-down. They become isolated. They worry about their career. They cannot sleep at night. They are concerned about who they speak with at work and worry that the complaint they filed is more of a problem for them than the harasser.
Employees have the right to be free from all harassment, including harassment on the basis of a protected ground of identity under Human Rights legislation.
Employers are obligated to provide a safe workplace free of harassment, violence, and discrimination. Employers should take steps to prevent harassment, and respond to it in a way that centres the harassee.
All managers, Human Resources personnel, and ideally, all employees, should receive training to promote awareness of harassment, sexual harassment, human rights, and workplace safety. All should be encouraged to step in, rather than stand by when they witness a coworker being harassed. All should be encouraged to actively work to build a workplace free of harassment, and to cultivate empathy for and solidarity with coworkers who have been harassed.
An employee who has experienced harassment needs to be able to trust that their managers, coworkers, and Human Resources personnel will understand the harassment they’ve experienced. An employee needs to know that they will be supported and centred.
So much attention is focussed on getting the harasser “reformed and rehabilitated”, and not enough attention is focussed on the person being harassed. It is time to reform Harassment Policies to ensure that employees who complain of harassment are protected and supported, as they are the ones who most often experience its lasting effects. The harassee must not be a second thought in this process, and deserves as much attention as the harrasser. If the harasser is allowed to remain in the workplace, they will likely survive. The survival of the harassee is often more precarious, and must be prioritized.
#WorkLawWednesday: every second Wednesday Pink Larkin answers general questions about employment and human rights law. This is not intended to be legal advice and should not be relied on as legal advice.