Get the Balance Right

Managing workplace harassment is a bit like navigating a minefield: You want to keep your company free of harassing behaviour; act quickly if there are incidents; and be fair to everyone involved. To complicate matters further, each of these issues presents potential liability.

There are several laws involved. The Canadian Human Rights Act, as well as provincial laws, puts the burden on

Identifying Harassment

lores_legal_law_judge_gavel_black_white_bzThe Canadian Human Rights Commission provides the following guidelines for defining harassment:
Unwelcome behaviour that demeans, humiliates, or embarrasses a person. This includes:

  • Actions, such as touching and pushing.
  • Comments, including jokes and name-calling.
  • Displays, such as posters and cartoons.

The Canadian Human Rights Act prohibits harassment related to race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability, pardoned conviction, or sexual orientation.

Disrespectful behaviour, commonly known as “personal” harassment isn’t covered by human rights legislation, but some employers put it in their policies.

Sexual harassment: This includes offensive or humiliating behaviour that is related to a person’s sex, creates an intimidating, unwelcome, hostile, or offensive work environment, or could reasonably be thought to put sexual conditions on a person’s job or employment opportunities.

Examples include questions or discussions about a person’s sex life; touching in an inappropriate way; commenting on attractiveness or unattractiveness; persisting in asking for a date after being refused, and writing sexually suggestive letters or notes.

Abuse of Authority. This occurs when a person uses authority unreasonably to interfere with an employee or a job. It includes humiliation, intimidation, threats and coercion.

Abuse of authority unrelated to the above legal prohibitions aren’t covered by human rights legislation, but some employers state in their policies that it will not be tolerated.

employers and managers to keep the workplace free of harassment. In addition, the Canada Labour Code requires employers to develop an anti-harassment policy and the Criminal Code protects people from physical and sexual assault.

When the Canadian Human Rights Commission evaluates a company’s liability in harassment complaints, policies and procedures play a major role. Employers are also responsible for monitoring the effectiveness of their policies, updating them if necessary, and ensuring that employees understand the policies and receive anti-harassment training.

It’s a good idea to get professional help drafting a policy. Among the components to include:

A clear and forceful statement. State that any form of harassment is intolerable and will be regarded as serious misconduct. This can help cut down on incidents and help employees feel comfortable filing complaints if necessary.

The consequences. Outline the potential penalties for harassment, including dismissal, and explain the steps that will be taken against individuals who make false accusations.

Definitions. Include examples of unacceptable conduct and list the categories covered under the Canadian Human Rights Act (for example, harassment based on sex, ethnic background or disability). Employees should know what harassment is and that it is against the law.

Rights and responsibilities. Employees need to know what is expected. Spell out the right to be free of harassment, the responsibility to treat others with respect, and, in the case of managers, the obligation to stop harassment.

Procedures. Outline the steps employees should follow if they are harassed. Sometimes employees are able to stop harassment just by speaking up or writing to the harasser. You can encourage them to do so. Keep in mind, however, that differences in power (age, sex, race, and so on) or status (such as a subordinate job) can make this impossible.

Investigations. Provide details of how charges will be investigated and resolved. Assure employees that everything will be confidential and that individuals making complaints or acting as witnesses on behalf of an employee won’t face penalties or retaliation.

A written policy can help employers decide whether to launch a formal investigation. For example, what is being alleged may not constitute harassment under the terms of the policy, because the offensive behaviour either was trivial or not based on a ground of discrimination as defined in human rights law. In such cases, informal discussions or counselling with the people involved may be sufficient.

Finally: Keep in mind that you are also responsible for harassment of non-employees by your employees. This includes potential employees, clients and customers.

(In a future article we’ll look at how to limit your company’s liability if an employee makes a complaint of workplace harassment.)

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