In August 2020, my colleague Veronica Howard and I published a blog on conducting workplace assessments under Bill C-65. At that time, Bill C-65 and the related Regulations set out the requirements that federally regulated employers were required to meet in order to satisfy their obligations under the Canada Labour Code (CLC)…
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.
In Ontario, harassment is defined in both the Human Rights Code and the Occupational Health and Safety Act as a course of vexatious comment or conduct that is known or ought to be known to be unwelcome. The term “course of conduct” gives the impression that harassment needs to be made up of multiple incidents. In fact, in some circumstances one serious incident can constitute harassment in the workplace.
2020 will see important shifts in how employers in federally-regulated industries prevent and address workplace harassment and violence. New rules will soon come into effect that will increase employers’ responsibilities to respond to incidents of harassment and violence, and also prevent any such incidents from occurring. I will be writing a series of blogs about these requirements so that employers and investigators can better prepare for what’s coming.
When we ask complainants in a workplace investigation whether there were any witnesses to the events that form the basis of their allegations, it is not uncommon to hear, “Well no, but I told my partner/best friend/colleague everything.” This is especially true in cases of sexual harassment or assault, where the events in question often take place in private, without witnesses present.
Whether advocating for a client before the Human Rights Tribunal, drafting a Respect at Work Policy or assisting a client with engaging a workplace investigator, many lawyers are familiar with providing advice about harassment at work, but how many of us have thought about harassment in our own workplaces?
The Law Society of Ontario’s Discrimination and Harassment Counsel (“DHC”), an organization whose mandate includes providing services to people who have concerns or complaints about discrimination or harassment by lawyers and paralegals, shed light on this topic in its most recent report.
There is no question that workplace investigations are disruptive and difficult for the parties involved. Sometimes parties are removed from the workplace or their duties are modified. Complainants and respondents are often concerned about damage to their reputations and their careers once it is known that a complaint has been made, and that an investigation is being conducted.
9.9 times out of 10, I am the only workplace investigator at a social gathering. At a recent dinner, I explained what I do for a living. I received the usual raised eye-brows and comments that the other guests would start to watch what they were saying, but no investigator jokes.
(After being a lawyer for 23 years, I believe I have heard the gamut of lawyer quotes and cracks, but I have yet to hear a good workplace investigator joke or jab.)
After the initial reaction, I was also asked, “Why, with all the media attention through #MeToo and policies and laws in place, are we still talking about people not knowing how to behave at work?”