I was actually going to write this blog last fall but it seems even more timely now. I have done a number of investigations in the past year where some of the allegations and evidence concerned conversations on various instant messaging platforms: Slack, Microsoft Teams and WhatsApp. While I seem to have developed a sub-specialty with investigations in the Tech sector, I confess that the first time a party spoke to me of Slack, I was somewhat clueless.
Despite this opening sentence in her decision, Tribunal Chair Juricevic found that the complainant’s allegations of sexual harassment and discrimination were not substantiated.
As a workplace investigator, I am sensitive to the fact that conversations around #MeToo in the workplace have been an evolution; people are not always sure about “where the line is” when assessing whether conduct in the workplace amounts to sexual harassment. The British Columbia Human Rights Tribunal recently chimed into this discussion. The decision¹ provides a detailed refresher on the legal test for claims of sexual harassment and draws a line in the sand regarding what is (or is not) considered sexual harassment.
Did you see the Dolly Parton Challenge meme that went viral in January 2020?
Initiated by American singer Dolly Parton, participants in the Challenge composite four photographs of themselves labelled, “LinkedIn”, “Facebook”, “Instagram”, and “Tinder”. The idea is that each photograph presents a version of the user that corresponds to a different professional, social, or romantic context. The humour in the meme lies in confessional self-awareness – a person can appear and act in one context in a way that might seem awkward or inappropriate in another.
As workplace investigators, we have all been there…we thought there was just one allegation. We had visions of an easy, straightforward, and speedy investigation. But then you meet the complainant and when you ask them, “Is there anything else?” it turns out there is much, much more.
Bias – whether conscious or unconscious – is a problem that workplace investigators grapple with in many forms. Perhaps bias is exactly what we’ve been asked to investigate: was the complainant treated differently at work on the basis of her gender, race or religion? Or, maybe we’re concerned that our own biases are affecting our investigation: do I believe the respondent’s evidence just because he looks and talks like me?
In our digital era, investigators must be increasingly technologically savvy. Evidence can take on many forms, including texts, emails and social media accounts. Many employers provide company-issued phones, which, more often than not, happen to be iPhones that are controlled by Apple IDs and rely on virtual storage. As the workplace is further digitized, and as more offices become mobile or virtual, investigations will naturally be dealing with evidence that is stored virtually on a cloud. As the decision District of Houston v. Canadian Union of Public Employees, Local 2086 (“District of Houston”) illustrates, sometimes when evidence is stored virtually, it is not so easy to access.