Volume 2, Issue 3 - Winter 2017

#Me Too #I Will

How to promote a respectful workplace

By Shereese Qually. 

It all started with Harvey Weinstein.

This, of course, isn’t accurate in that allegations of sexual harassment against powerful figures certainly predate the October claims against the media mogul.

In the weeks and months following, however, we have seen a tide of #MeToo stories flooding the media, and an international conversation on sexual harassment to an unprecedented level. Stories abound across social media of various overt and systemic incidents of harassment throughout many industries and workplaces.

In the employment and labour law context, we are concurrently seeing a message to employers that failing to address or appropriately respond to complaints of harassment of any nature is inappropriate and will be met with significant remedial consequences, including significant damage awards. These cases indicate that not only are there significant financial ramifications for employer and high-level managerial harassment (and there certainly are such awards), but there is also significant liability where an employer fails to implement appropriate policies and procedures to address harassment, respond to complaints of harassment, or follow its own policy in responding to an allegation of harassment.

The following are examples of some of these high-mark warning cases:

• In the case of Garland v. Tackaberry (c.o.b. Grape & Grain), [2013] MHRBAD 5, an employee was subjected to ongoing lewd comments and actions by a customer of the business. The employer was aware of the continued harassment and failed to take steps to terminate it despite the complaint. The employer was liable for failing to take reasonable steps to prevent the harassment and was ordered to pay $7,750 to its former employee.

• In Re Renfrew County and District Health Unit and UPSEU, Local 487 (Correia), [2014] Carswell, Ont. 3402, $9,000 in general damages were awarded as a result of homophobic comments made in a conversation involving the complainant’s supervisor, and overheard by the acting manager. The investigation was inadequate, failed to follow policy, and failed to provide an adequate response to the incident. This case clearly states that, to meet its obligations, an employer must act appropriately before there is discriminatory conduct in the workplace, during the management of a complaint, and following the conclusion of the complaint.

• In Re City of Hamilton and ATU, Local 107 (BA), [2013] Carswell, Ont. 13296, the complainant was subject to sexual harassment by a supervisor, including inappropriate conduct and comments. She complained multiple times both formally and informally to her superiors. The City was found to have acted inappropriately in that managers did not assist in moving the matter forward, actions taken following the complaint and investigation were sorely lacking, and the City failed to follow its own internal policy. The City was found to have taken a half-hearted and insensitive approach to addressing and dealing with harassment; and, as a result, was required to pay $25,000 in general damages.

• In The City of Calgary v. CUPE, Local 28, [2013] CanLII 88297 (AB GAA), there was an incident of egregious sexual harassment and assault of an employee by a supervisor, followed by retaliation by co-workers when a complaint was made. It was found that the griever suffered significant, life-changing injuries as a result of the incidents, which were exacerbated by management’s complete failure to protect and support her and comply with its own internal policy. The City was ordered to pay $125,000.

These are only a small sampling of the recent harassment cases, yet they clearly espouse takeaways for employers. It is integral (and required by provincial human rights, as well as workplace safety and health legislation) that employers act in a proactive manner to encourage a respectful workplace, have clear policies in place, implement processes to encourage those who are being subjected to such actions to come forward, abide by and follow these policies and procedures, and act reasonably in response to complaints.

So, where do these stories and cases leave you as employers? What lessons are to be learned and what actions can be taken to address these concerns? The task is to turn inward, look internally at your policies, practices, procedures, and to consider your message to the workplace about harassment of any nature. Employers are required to take reasonable steps to prevent harassment in their workplaces and to mitigate or avoid the effects of any harassment that does occur. The following are the concrete steps to implement these goals:

Have a respectful workplace policy

Employers should have respectful workplace policies, procedures for employees to feel comfortable reporting behaviours, protocols to investigate complaints, and a process for possible consequences.

While an anti-harassment policy will suffice, the title seems to suggest a lower standard than perhaps an employer would wish to meet. Setting the bar with an expectation of respect and dignity throughout the workplace, discouraging harassment, bullying, and discrimination is a preferable standard. Therefore, the title of ‘respectful workplace policy’ is preferable, and sets a more positive tone and expectation for the workplace.

The policy must include certain language depending on the province in which you operate, but generally should include: Definitions of discrimination and harassment; an expectation and requirement that the workplace be free from discrimination and harassment; a process for reporting any incidents; internal procedures for how complaints will be handled, including who will investigate the matter, any expectations of confidentiality, and reports to be produced; clear processes that permit complaining employees to bypass harassing managers; confirmation that appropriate action will be taken for those found to be violating the policy up to and including termination; and, a promise that those who make a complaint under the policy and those who participate in the investigation process will not be subject to reprisal.

Train your employees on the policy

The existence of a respectful workplace policy in a manual or on an intranet is of little value unless employees are repeatedly made aware of its existence and trained on the obligations and expectations set out in the policy.

People must be aware of the expectations of conduct in the workplace, have this message consistently enforced, and be aware of the consequences of failing to meet these standards. This training can be done internally by a competent human resources or other knowledgeable person, or by engaging an external expert, including your labour and employment lawyer.

Training sessions should review the policy and procedure for filing a complaint, but importantly talk through potential examples and engage employees to critically think about incidents that may arise in the workplace. It should be stressed to employees that their obligations extend to any work-related function and activity, as well as to comments and actions on social media.

Review and revise your policy

Do not create the policy and let it become stagnant or irrelevant to the changing law and workplace. This policy, like others, should be routinely reviewed to reflect any incidents that have occurred in the workplace, and change to the law or legislation.

Follow your policy

As the aforementioned cases indicate, it is key when you set out a policy for it to be followed. The first place to turn when an incident of harassment arises is to your policy, to ensure the promises you have made to your workplace — in terms of how a complaint will be managed — are, in fact, met.

Respond appropriately to complaints

It is not appropriate to dismiss a complaint on a preliminary basis without due process or following your internal policy. Investigate complaints. Interview relevant witnesses. Make credibility findings (or engage a specialist to do so). There is great risk and folly in minimizing a harassment complaint — both from a legal and liability perspective (as noted in the cases), and from a practical perspective, where complainants receive a message that their complaints will not be seriously addressed.

Take appropriate corrective action

If you find discriminatory or harassing behaviour has occurred, take appropriate corrective action. This may include a disciplinary penalty, such as a formal warning, suspension, or termination, but may also include a more remedial approach of mediation, training, and ongoing monitoring, depending on the severity of the behaviour and relationships involved. It is important to address each incident on a case-by-case basis and respond appropriately to the individual incident or action.

Begin the process of assessing your internal policies and procedures, and obtain expert advice where appropriate to ensure you’re compliant with relevant legislative and common law requirements. The most important takeaway for management is to espouse a culture and expectation of respect and dignity for all employees.

If your employees hear and see managerial-level action that promotes a respectful workplace, with zero tolerance for harassment and discrimination, this will undoubtedly influence the general employee population in a positive manner.

Shereese Qually is a partner with Winnipeg-based Taylor McCaffrey LLP. Her primary areas of practice are labour and employment law, as well as human rights and privacy.