Are You Worried About Sexual Harassment?
BACKGROUND
What’s the first thing that that comes to mind when you hear that someone was charged with “Sexual Harassment”?
Images of groping, slapping of the buttocks, constant leering comments and conversation peppered with sexual innuendo come to mind.
The days of “Mad Men” and “Benny Hill” are gone. The boys club is gone, but still, some live in the past and so here are the facts.
Workers may face violence and harassment in any workplace and from any person in that workplace. There is a continuum of unwanted behaviours that can occur in a workplace and can range from offensive remarks to violence. What is considered “offensive” depends on the individual, which is why the regulations exist, and also why training is important.
Employers, managers and supervisors need to address any unwanted behaviours early to minimize the potential for workplace harassment to lead to workplace violence. Obviously an employer can’t know everything that is going on, so reporting needs to be communicated.
Employers, therefore, have specific duties with respect to workplace harassment and workplace violence under the Occupational Health and Safety Act.
Does it matter who the perpetrator is?
The harassing or violent person may be someone the worker comes into contact with due to the nature of his or her work. This may include, but is not limited to, a client, customer, volunteer, student, patient, etc.
The harassing or violent person may also be part of the workforce, including a co- worker, manager, supervisor or employer. Or the person may be someone with no formal
connection to the workplace such as a stranger or a domestic/intimate partner who brings violence or harassment into the workplace. An employer has the duty to consider who the employee will come into contact with and ensure that concerns are addressed.
Canada’s Criminal Code deals with matters such as violent acts, sexual assault, threats and behaviours such as stalking. The police should be contacted in these situations.
Harassment may also be a matter that falls under Ontario’s Human Rights Code.
THE LEGISLTION
Should we care? What if we ignore it? Fines by the Ministry of Labour are one thing, and civil suits against the company by the victims are another. Don’t count on your work place insurance covering the costs. If they investigate and find, that as a company, you have not done your due diligence in proper training, the insurance company may not be obligated to cover your costs. It is in the insurance company’s best interest to look for, and find deficiencies in your workplace policies.
Ontario Ministry of Labour health and safety inspectors enforce the Occupational Health and Safety Act in relation to Part III.0.1, sections 32.01.1-32.0.8. Ministry of
Labour inspectors will apply and enforce the OHSA and its regulations based on the facts as they may find them in the workplace.
WORKPLACE SEXUAL HARASSMENT
The Occupational Health and Safety Act defines workplace sexual harassment as:
• engaging in a course of vexatious comment or conduct against a worker,
in a workplace because of sex, sexual orientation, gender identity or gender expression where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
• making a sexual solicitation or advance where the person making it is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know the solicitation or advance is unwelcome.
This definition of workplace sexual harassment reflects the prohibitions on sexual harassment and sexual solicitation found in Ontario’s Human Rights Code.
The comments or conduct typically happen more than once, although a single unwelcome solicitation or advance from a manager, supervisor, or another person who has the power to reward or punish the worker may constitute workplace sexual harassment. Multiple events can occur over a relatively short period of time or over a longer period.
What is workplace sexual harassment?
Workplace sexual harassment can involve unwelcome words or actions associated with sex, sexual orientation or gender that are that are known or should be known to be offensive, embarrassing, humiliating or demeaning to a worker or group of workers, in a workplace. It can also include behaviour that intimidates or isolates individual(s). Workplace sexual harassment may include:
• asking questions, talking, or writing about sexual activities;
• rough or vulgar humour or language related to sexuality, sexual orientation or gender;
• displaying or circulating pornography, sexual images, or offensive sexual jokes in print or electronic form;
• leering or inappropriate staring;
• invading personal space;
• unnecessary physical contact, including inappropriate touching;
• demanding hugs, dates, or sexual favours;
• making gender-related comments about someone’s physical characteristics, mannerisms, or conformity to sex-role stereotypes;
• verbally abusing, threatening or taunting someone based on gender or sexual orientation; or
• threatening to penalize or otherwise punish a worker if they refuse a sexual advance.
Where the conduct or behaviour includes inappropriate sexual touching, this may also constitute a criminal offence such as sexual assault. In such cases, the police should be notified. See Section 4.3 of this guide for more on the role of the police.
What are gender identity and gender expression?
Gender identity is each person’s internal and individual experience of gender.
It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from their birth-assigned sex. Gender identity is fundamentally different from a person’s sexual orientation.
Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender.
ASSESSING THE RISK
Under the Occupational Health and Safety Act, the employer has a number of responsibilities for assessing the risks of workplace violence.
The employer must:
• assess the risk of workplace violence that may arise from the nature
of the workplace, type of work or conditions of work [section 32.0.3(1)];
• take into account the circumstances of the workplace and circumstances common to similar workplaces, as well as any other elements prescribed in regulation [section 32.0.3(2)]; and
• develop measures and procedures to control identified risks that are likely to expose a worker to physical injury. These measures and procedures must be part of the workplace violence program [section 32.0.2(2)(a)].
The employer must advise the joint health and safety committee or health and safety representative of the assessment results. If the assessment is in writing, the employer must provide a copy to the committee or the representative [section 32.0.3(3)(a)].
If there is no committee or representative, the employer must advise workers of the assessment results. If the assessment is in writing, the employer must provide copies to workers on request or advise the workers how to obtain copies [section 32.0.3(3)(b)].
Employers must repeat the assessment as often as necessary to ensure the workplace violence policy and related program continue to protect workers from workplace violence [section 32.0.3(4)] and inform the joint health and safety committee, health and safety representative, or workers of the results of the re-assessment [section 32.0.3(5)].
WORK REFUSAL
Under the Occupational Health and Safety Act, a worker can refuse to work if he or she has reason to believe he or she may be endangered by workplace violence [section 43(3)(b.1)]. However, work cannot be refused on the grounds of workplace harassment.
The act sets out a specific procedure that must be followed in a work refusal. It is important for workers, employers, supervisors, joint health and safety committees, and health and safety representatives to understand and follow this procedure.
The workplace violence program must include measures and procedures for workers to report workplace violence incidents and for employers to investigate and deal with those incidents or complaints.
These measures can help workers, supervisors and employers address workplace violence concerns before they escalate to work refusals.
Do all workers have the right to refuse work due to workplace violence?
Yes, but for some workers the right to refuse work for any reason, including for workplace violence, is limited.
Where must workers stay during a work refusal?
A worker must remain in a safe place as near as reasonably possible to his or her workstation while waiting for the employer to investigate [section 43(5)] or for the Ministry of Labour to investigate [section 43(10)].
The location will depend on the circumstances that led to the work refusal.
Employers may wish to develop workplace-specific procedures for work refusals related to workplace violence, including where a safe place would be. These workplace-specific procedures must be consistent with the work refusal provisions in the Occupational Health and Safety Act.
Can a worker refuse work on the basis of a threat?
Yes, if it is (or can be reasonably interpreted to be) a threat to exercise force that could cause physical injury to the worker. Where a worker receives a threat that does not cause him/her to fear for his/her personal safety, the worker should use the procedures in the workplace violence or harassment program to report the incident to his or her employer.
Does all work need to be suspended during an investigation if there is a work refusal due to workplace violence?
Although Section 43 allows workers to refuse to work or do particular work if their health and safety is in danger due to workplace violence, this does not mean all work needs to be suspended during a work refusal.
For example, if the risk of workplace violence is eliminated by the removal of a violent person, it may be possible for work to continue during the employer’s investigation.
Can the measures and procedures that an employer has in place affect a worker’s right to refuse due to workplace violence?
A worker who has reason to believe that he or she is likely endangered by workplace violence always has the right to refuse work (subject to limitations on the right to refuse work for specific categories of workers).
An employer with a good workplace violence policy and program, supported by equipment, training and effective communication, should have established methods for immediately dealing with violent and potentially violent incidents. For example, an employer may direct workers to call the police for assistance when they have immediate safety concerns due to workplace violence.
Having these internal procedures in place may be the best way to prevent further danger and to protect workers and members of the public (in sectors such as the transit industry, for example). This does not limit a worker’s right to refuse work. However, because the danger to workers is dealt with quickly, a worker may not need to refuse work in these circumstances.
THE COMPLAINT
In a typical case, a worker who feels he or she is being harassed or has been the victim of violence in the workplace, will make a formal complaint to their supervisor. What do you do in the case where the complainant makes the complaint but insists that you do not take any action such as commencing an investigation. The obligation is still on the employer to investigate the complaint.
THE RESPONSE
Now that the formal complaint has been made and initial inquiries have resulted in specific allegations(s) against an individual or group, the Respondent must be made aware of the specific allegations.
In normal course, a Respondent who is confronted with allegations of workplace violence or harassment may have a tendency to lash out be caught off guard, therefore not allowing a thought out response. To avoid any impulsive reactions by the Respondent, they must be “put on notice”. The investigator(s) must meet with the Respondent and make them aware that there has been a complaint concerning allegations of workplace violence or harassment/sexual harassment. The notice will ideally be in writing and outline the allegations. The Respondent is advised that the investigation is confidential and he or she is not to discuss this with anybody.
The investigator will advise the Respondent that they will meet again, generally in a week or so therefore giving the Respondent time to reflect on the allegations.
THE INVESTIGATION
Once the investigation commences, several things can happen.There may be many witnesses identified that need to be interviewed, there may be other workers who do not want to participate and there may also be language and cultural barriers. All of the above need to be considered.
Internal versus external investigators
Many HR professionals aren’t aware of the basics surrounding investigations. While the services of a qualified investigator can be valuable, HR can and should probably be equipped to conduct at least some investigations internally. They should know how to conduct workplace investigations on their own — and when they’ve met their match and it’s time to call an expert.
However, depending on the backgrounds and qualifications of any internal investigators, and the degree of sensitivity of the matter at hand, it may be a better idea to have an impartial external investigator conduct or assist in the investigation. External investigators should probably be used when there’s any hint of conflict of interest, when disputes involve very senior individuals within the organization, when allegations are particularly serious, when disputes involve complicated legal, financial or technical issues, or when allegations relate to physical violence or serious criminal conduct. We recommend external investigations in order to show that the investigation was neutral.
An “impartial person” would be someone who is unbiased, with no conflict of interest, and in good standing with their professional body (if applicable). An “impartial person” may be someone external to the workplace or organization, in some circumstances it could be someone in the organization.
An example of a person an employer could engage to conduct a workplace investigation, subject to the circumstances of the case and to any criteria set out in the order, could include someone who is:
• from a different branch of the same company;
• from the corporate office; or
• from another related franchise.
Where it would be more appropriate for a third party to investigate, the person could be someone who is:
• a certified human resource / safety professional
• a lawyer; paralegal
• a licensed private investigator.
It should be noted that if someone conducts workplace investigations as a primary part of their business, they need to be properly licensed, usually as a lawyer/paralegal or a private investigator. If you must to do it yourself, here are some tips:
Obtain all sides of the story. Interview all parties to the dispute thoroughly, impartially and in private. Ask open-ended questions.
Maintain accurate records of what was said. Wherever possible, try to capture what was said verbatim.
Maintain confidentiality. Don't divulge identities of accusers or specific allegations unless required to do so in the interests of allowing alleged perpetrators a chance to defend themselves, or when necessary to obtain a full picture of what actually happened.
Preserve evidence wherever possible. When necessary, retain documents, copies of e-mails, phone records, etc. Obtain photographic evidence where applicable.
Interview technical experts to confirm the authenticity of video surveillance footage or computer usage data.
Consider allowing an independent person to sit in on the investigation. Allow employees to have a colleague or union representative present during interviews.
Consider reporting alleged criminal conduct to the police. Ensure any internal investigation doesn’t interfere with police investigations.
Consider moving the complainant and/or the alleged perpetrator to a different workstation while the investigation is ongoing.
Depending on the nature of the complaint, consider allowing the complainant to go on a paid leave of absence pending the outcome of the investigation.
Don’t jump to conclusions. Remember, the alleged perpetrator also has rights, and should be presumed innocent until proven guilty.
Ensure there are no reprisals for making a complaint, unless allegations turn out to be made in bad faith.
Know when you're out of your depth. Obtain legal advice or assistance conducting the investigation when needed.
Produce a full and accurate report with recommendations once the investigation has been concluded.
THE OUTCOME-NOW WHAT?
A report will generally include recommendations to develop or improve the Violence and Harassment program. The recommendations must be taken seriously in order to prove due diligence by the employer.
Robert Gill, CHRL, CRSP, CHSC, EP, Q.Med Sue Eastwood
Licensed Paralegal Business Development Consultant
Licensed Private Investigator RMG Consulting Group Inc.
RMG Consulting Group Inc. RGPS-Professional Corporation
RGPS-Professional Corporation
Sue is a business development consultant with RMG Consulting Group. Please visit our web site at www.rmgconsulting.ca to earn more about reducing your risk as an employer, and ensure that your current policies are compliant with The Ministry of Labour. Sue can be reached at 905-761-9030 or sue@rmgconsulting.ca for a complimentary consultation.
Rob is a Licensed Paralegal that manages both an Occupational Health & Safety Consulting business, and a Paralegal Practice focusing on Occupational Health & Safety, including Workplace Violence & Harassment program development, implementation, training and investigations. Rob can be reached at 905-761-9030 or rgill@rmgconsulting.ca for a complimentary consultation.