As investigators we know that an employer’s duty to investigate – while necessary to ensure a healthy and safe working environment – can also be cumbersome, expensive, and a significant strain on an organization’s resources. When an employee leaves the workplace and then files a complaint of harassment or discrimination, employers can be quick to try and avoid the investigation on the basis that an employment relationship no longer exists. Two recent cases – one from the Ontario Grievance Settlement Board and one from the Canadian Human Rights Tribunal – suggest that employers need to slow down and consider some factors before dismissing a former employee’s complaints.
Lorsque j’étais membre du Tribunal des droits de la personne de l’Ontario, j’ai présidé à une audience qui se déroulait en anglais où une des parties désirait être identifiée par le pronom « they ». Et si l’audience s’était déroulée en français? Est-ce qu’il y a un terme correspondant? On le sait, la langue française n’est pas neutre; tout est forcément féminin ou masculin.
French is not a gender-neutral language, which presents added challenges when referring to individuals who identify as non-binary. There is no corresponding term to “they” in French. As noted by the Ontario Human Rights Commission, deliberately misusing pronouns can be a form of discrimination under the Human Rights Code.
We are now in a world where workplace harassment is taken much more seriously than it was before. Although some jurisdictions in Canada do not have an explicit legal obligation to investigate incidents of this nature, there is now a pressing moral obligation to do so. But when such a moral obligation is unmoored from legal principles or government-issued guidelines, there is a greater risk of unfairness to all parties. An investigation in this context is more likely to be guided by an emotional drive to either undermine those who raise complaints or persecute those who are alleged to have behaved badly, rather than arriving at factual findings from a neutral perspective using a fair investigation process.