In my previous life, before becoming an investigator, I lived in the world of private legal practice, both in the Caribbean and in Ontario, Canada. In that role, I had the opportunity of interacting with persons of diverse social, cultural and racial backgrounds, persons of varying personality types and persons with experiences that had shaped their life or the way they interacted with others. There were many occasions where the persons with whom I interacted, whether as their advocate or as opposing counsel, were seemingly not forthcoming with the information that I needed to illicit. The typical or traditional thinking is that they are not forthcoming because they are either lying or have something to hide.
A few weeks ago, I was part of a panel on TVO. The discussion centred on what had changed in the two years since the #Me Too Movement had begun. Much to my surprise, I seemed to be the sole voice on the panel who thought that the needle on the sexual harassment dial had moved at all.
At the risk of sounding like a Pollyanna, let me explain why I believe things have changed. I do so from the vantage point of someone who leads a large team of lawyers, lawyers who investigate complaints of sexual harassment across the country, in English and in French, and in every conceivable type of workplace.
Workplace investigations can be hard on parties and employers alike, and the challenges don’t end when the investigation is over. At the conclusion of the investigation, decisions need to be made: What consequences (if any) will there be for the respondent? How will the employer remediate the working relationship? Is it even possible to do so?
A question I often get asked as an external investigator when the allegations turn out to be unsubstantiated is: Does this mean that the complaint was frivolous or vexatious, and if so should there be consequences for the complainant?
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.