Are Your Harassment Policies and Procedures Sufficient?
By Yosie Saint-Cyr LL.B., Editor at HRinfodesk---Canadian Payroll and Employment Law News, August 2004
What is workplace harassment?
Harassment is a form of discrimination, which occurs in the workplace.
Harassment can include, but is not limited to: unwanted comments, slurs, racist or sexist jokes, pictures or posters, bullying or intimidation, graffiti, physical contact of any kind, remarks about a person's appearance or personal life, unwelcome sexual advances or demands, and suggestive looks or gestures.
Definition
Harassment can be defined as any action (verbal, psychological or physical) directed toward an employee on a single or repeated basis, which humiliates insults or degrades and is known or ought reasonably to be known to be unwelcome by the victim of the harassment.
Although there are different kinds of harassment, sexual and racial harassment are the two most common forms of workplace harassment. The Supreme Court of Canada defines sexual harassment as "unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment." (Janzen v. Platy Enterprises Ltd. (1989) 1 S.R.C. 1252).
The same definition applies to workplace harassment, which is unwelcome conduct based on race, religious beliefs, colour, gender, physical or mental disability, marital status, age, ancestry, or place of origin. Specifically:
Sexual harassment is any unwanted attention of a sexual nature, like remarks about one's looks or personal life. Sometimes these comments may sound like a compliment, but they are not and make a person feel uneasy. Sexual harassment can include but is not limited to:
- Degrading words or pictures (like graffiti, photos, or posters);
- Physical contact of any kind;
- Sexual demands.
Racial harassment is any action that expresses or promotes racial hatred and stereotypes of an obvious or subtle nature. Racial harassment can be hidden in questions or remarks that seem positive. It can include but is not limited to:
- Spoken or written putdowns;
- Gestures;
- Jokes;
- Other unwanted comments or acts.
How Does Workplace Harassment Occur?
The following examples could be considered harassment but are not meant to cover all potential incidents:
- Display of offensive materials such as racist or sexist pictures;
- Avoiding or excluding someone due to race, age, sex, religion, etc.;
- Verbal insults or degrading remarks;
- Unwelcome jokes about disability, race, sex, etc;
- Refusal to work or converse with an employee because of their racial background, gender, etc.;
- Unwanted physical conduct such as touching, patting, pinching, etc.;
- Condescension or paternalism which undermines self-respect;
- Backlash or retaliation for the lodging of a complaint or participation in an investigation;
- Persistent and unwanted contact or attention after the end of a consensual relationship;
- Verbal or physical abuse or threats.
Harassment does not have to be directed at a specific individual. Any activity that degrades or devalues others can violate an employee's rights even if he or she is not the intended victim. For example, sexist remarks can create a hostile or offensive workplace for all employees, even if they are not made in the presence of women. This is called a "poisoned" work environment.
Harassment is usually ongoing offensive behaviour, which does not stop after the individual is told that the behaviour is upsetting another employee. However, an employee might find one incident sufficiently offensive to affect his or her entire work experience.
Anyone associated with the workplace, including co-workers, clients, contractors or customers, can harass an employee. However, harassment by supervisors or managers who have authority over others can be particularly devastating since it may involve direct or indirect threats to demote, dismiss or impede promotion of an employee. Regardless of who is doing it, workplace harassment is wrong and employers must deal with it.
Workplace harassment is not confined to the physical worksite. It can occur in any location related to the work of the organization. This can include cafeterias, conferences, training sessions, business travel, workplace socials and so on.
The Courts have indicated that whether a particular behaviour is harassment depends on the effect it has rather than the intent of the harasser. This is an important distinction. For example, if an employee tells a joke, which degrades other employees, it is still harassment even if no offense was intended. Lack of intent on the part of the harasser is not a defense. The impact of the behaviour on the recipient is of primary importance.
Sometimes it's hard to know if a remark will upset other employees. Since some actions and comments may not reasonably be known to be offensive, employees who are upset should make their discomfort known. A person who is told that his or her behaviour is offensive must stop immediately.
An Employer's Duties and Responsibilities under Human Rights Legislation
Under Human Rights legislation, employers have a responsibility and legal obligation to ensure employees are not exposed to any form of harassment in the workplace. Employees have a right to work in an environment free from harassment and employers have a duty to provide a workplace free of harassment. As such, employers should implement an anti-harassment policy and be responsible for ensuring adherence to the procedures of the policy. This includes taking appropriate preventive or corrective measures and stopping any harassment of which they are aware.
Employers should ensure that all employees' rights are protected and should support employees in conflict resolution processes.
Employers who do not take reasonable steps to prevent and deal with workplace harassment may be liable for any harassment that occurs, even if they are unaware of it. Harassment which takes such forms as physical or sexual assault, destruction of an employee's personal property or threats to cause harm are criminal in nature. The employer and/or the victim should contact the police and investigate the matter.
What Should Employers Do?
Workplace harassment is preventable. Employers should educate employees and management on the broad topic of harassment and implement an anti-harassment policy, as well as being responsible for ensuring adherence to the procedures of the policy.
Create the right climate and company culture that inspires and encourages a workplace free of harassment. Conduct workshops to educate employees and management about the nature of harassment, its effects, remedies and consequences.
Several Court cases emphasize the importance of solid anti-harassment program that include policies and procedures. Legal liability can be greatly minimized if the employer has implemented and followed a program designed to prevent and correct harassment. More importantly, such a program can drastically help to prevent legal claims by providing avenues for resolution from within the company.
Specifically, the employer may avoid liability if it can prove that it exercised reasonable care to prevent and promptly correct any harassing behavior and the victim unreasonably failed to use any preventive or corrective methods provided by the employer.
What are an Employee's Duties and Responsibilities under Human Rights Legislation?
Employees must also support and comply with anti-harassment policy by ensuring their behaviour meets acceptable standards. Employees must refrain from discriminatory or harassing behaviour.
Employees who feel they have been harassed should make their objections known to the alleged harasser and their employer, the latter documenting the incident. Employees witnessing harassment are also encouraged to notify their employer.
How Should Employees Who Feel they are Being Harassed React?
There are specific actions that may be taken by employees to put a stop to harassment, and an employer has a responsibility to inform employees of what action they can take. An harassed employee should:
- Request a stop of the unwanted behaviour;
- Inform the individual who is doing the harassing or the discriminating that the behaviour is unwanted and unwelcome;
- Document the events, complete with times, dates, location, witnesses and details;
- Consult the employer's anti-harassment policy and report the incident to a supervisor/committee person.
Elements and Considerations of an Anti-Harassment Policy
The roles and responsibilities of the employer and employees, as well as Unions (if applicable) should be covered in the policy. Other elements that should be considered when implementing an anti-harassment policy:
- The company will need to decide whether to adopt one policy covering all types of unlawful harassment or separate policies covering each area of harassment. Small companies may find it more practical to develop one policy. If a company adopts more than one policy to cover different types of harassment, it should use the same reporting/investigation process and procedures for all harassment complaints to avoid confusion.
- Incorporate a mission statement as to the purpose and objective of your anti-harassment policy, which states your company's view on harassment in the workplace. An example of such a statement is:
“Harassment in the workplace will not be tolerated. The abuse of one's authority or position to intimidate, coerce or harass is forbidden. Harassment constitutes a disciplinary infraction that shall be dealt with through the appropriate measures.”
- Specify that the company will take corrective action to stop the harassment and prevent recurrence.
- Ensure all employees are made aware of the policy at all times; publish and communicate the policy.
- Have new and current employees sign and acknowledge that they have been informed and understand the policy as it is written.
- Indicate to whom the policy applies.
- Provide definitions for harassment, discrimination, workplace, hostile work environment, and so forth.
- Provide examples of what is considered harassment, but state that the list is not exhaustive. Include prohibited grounds of discrimination found in human rights legislation of your jurisdiction. Examples of harassment include, but are not limited to: derogatory remarks; threats; inappropriate jokes, innuendos and teasing; insulting gestures; practical jokes which result in embarrassment; displaying pin-ups, pornography, or other offensive materials; actions that invade privacy; spreading rumours that damage one's reputation; refusing to work with; condescending or patronizing behaviour; abuse of authority; unwelcome touching; physical assault; or sexual assault.
- Refer to appropriate Human Rights and/or Occupational Health and Safety legislation in your jurisdiction.
- Refer to standards to determine if a hostile environment exists in your workplace; make those standards known to employees and supervisors/managers.
- Inform all supervisors/managers of their responsibility to provide a safe and harassment-free workplace.
- Address issues of confidentiality and privacy; ensure that the name(s) of complainant(s) or alleged harasser(s) and/or the circumstances related to the complaint will not be disclosed to any person except where disclosure is necessary to investigate, or take corrective action (as a result of the complaint), or required by law
- All information relating to a verbal and written complaint must be kept strictly confidential.
- Assure employees that there will be no punishment for filing a complaint or acting as a witness.
- Specify to whom the employee must refer to file a complaint, obtain information and/or support.
- Establish a reporting process and procedure for addressing workplace harassment. Include when and how a complaint can be filed, how the employer will respond to a complaint, the process of investigation, a description of the procedure the employer follows to inform the complainant and the alleged harasser of the results of the investigation, and dispute resolution options.
- Provide for disciplinary measures (up to termination) for employees who violate the policy, or file a false complaint, or complain in bad faith, and other redress procedures.
- Decide if the accused employee should remain at work or be suspended during the investigation; the investigative procedure should indicate under what circumstances the alleged harasser will be removed from the workplace with or without pay during the investigation.
- In order to enforce the policy, the person responsible for addressing harassment complaints, supervisors and managers must respond to an harassment complaint immediately.
- Anti-harassment training and education must be provided to employees, supervisors and management; education must include how to identify, handle, and resolve harassment situations.
- Include employer recourses, such as outside involvement from the police and criminal charges.
- Include an accommodation and employee assistance program (if available and appropriate).
- Indicate what the employee's recourses are, if any.
- Indicate how the harassed employee, the accused employee and all other witnesses should be approached, and interviews conducted and documented.
- Be consistent in enforcing company policy-never overlook infractions.
- Prepare guidelines that inform employees and managers on what to do when an individual is: accused of harassment, witness to harassment, harassed in the workplace by a co-worker, customer or a member of the public; and processes and procedures to address and handle harassment in the workplace.
- Indicate to employees that conduct outside of the workplace may still be considered employment related provided there is a connection between the activity and the workplace, such as any company-sponsored event.
- Monitor the workplace by having managers/supervisors consistently assess the workplace to ensure it conforms to the company's code of conduct and a workplace free of harassment.
- Ensure the harassment policy prohibits any form of derogatory remarks about employees relating to race, colour, sex, sexual orientation, ethnicity, nationality, religious beliefs/observance and creed.
- Monitor the workplace and address improper comments and/or rumours immediately.
- Establish a complaint and dispute resolution process and procedure to identify and deal with potential problems.
- Take immediate steps to investigate if a complaint has been made about workplace gossip, which could violate human rights legislation; once management is informed of a problem, it has a legal duty to take immediate action.
- Even if the employee who complains does not know the source of the gossip or rumour, the employer must still address the gossip/rumour and investigate. Disparaging comments, which target a person on the basis of their identification with a prohibited ground of discrimination whether stated directly or indirectly, can be the basis for a finding of employment discrimination.
- Apply the policy fairly and in a non-discriminatory way.
- Provide for an annual review and updating of the policy.
- Indicate if the individual who is determined to have violated the policy may be held personally liable for any damages, settlement costs, or expenses, including attorney fees incurred by the company.
- Communicate reminders; remind your organization of the importance of an effective anti-harassment program. Reiterate to the management and/or executive officers how much their leadership and support for the program can influence workplace behavior. Schedule refre
Valuable Lessons Derived from Several Court Cases Dealing with Harassment:
- A written policy alone, even a good policy, is not enough; it must be implemented fully and effectively;
- The reaction of frontline supervisors to allegations of harassment is very important. A disinterested type effort can become very costly. Companies would be wise to consider the type of training their supervisors receive in this area; and
- If a group of employees makes similar allegations, the exposure to the company is magnified. A group of employees who allege widespread harassment present a strength-in-numbers dynamic that is difficult to offset with standard defense techniques such as attacking the complainant's credibility, using the company's policy as a shield, presenting evidence concerning severity, pervasiveness and unwelcomeness, and the relationship between the harasser and harassee.
Additional Resources
Harassment Investigation Guide
Internal Investigations Relating to the Conduct of Employees
New Human Rights Guide for the Workplace