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Slurs, name-calling, swearing, yelling, taunting, eye rolling, profane jokes and innuendos, sexual harassment, violence to property or person: these are easily recognized as the types of behaviours which run afoul of workplace codes of conduct and anti-harassment policies.
As lawyers who conduct both workplace investigations and workplace assessments, we often hear from employees who have been the target of workplace bullying.
A recent decision of the Manitoba Human Rights Commission¹ has clarified the extent of an employer’s obligation to provide its employees with a safe and respectful workplace. The decision – the first time the Human Rights Commission has considered a complaint of harassment on the basis of sexual orientation – is a powerful one, and is full of important takeaways for employers, employees, and workplace investigators alike.
Grey’s Anatomy – the television show and not the textbook – has been running for more seasons than I care to count. All I know is that it has spanned several different stages of my educational and professional life and seems to have as strong a following as ever. Not unlike the legal world, mining the hospital and health care environment for inspiration can yield highly entertaining programming. One archetypal character that frequently appears in both drama and comedic form is the curmudgeonly demanding senior doctor.
Examples of problematic workplace behaviours often include the obvious: a racial slur, a homophobic “joke” or inappropriate touching. But what happens when the behaviour in question is less overt? While seemingly innocuous, these types of comments can amount to what has been dubbed “microaggressions”. Named the ‘Top Word of 2015’ by the Global Language Monitor, this term has become increasingly popular in our common parlance. But what are microaggressions and why should employers (and other institutions) be concerned about them?
Sometimes, when I tell people that I conduct workplace investigations for a living, I am met with surprise. “There is a need for that?” they ask, often adding their view that harassment is a thing of the past. When I explain that it is not only harassment that is a problem in Canadian workplaces, but also violence, I am often met with complete disbelief.
The law on harassment investigations tells us that an employer must conduct an investigation that is “reasonable” and “appropriate in the circumstances.” The challenge is to know what the exact content of a reasonable and appropriate investigation is, particularly when the workplace issue to investigate appears to be like a puzzle with missing pieces whose final picture is constantly shifting.
As an investigator, one of the questions I get asked most often is, “How do you know who is telling the truth?” It is a great question, and one that I think all investigators grapple with. Indeed, one of the hardest parts of report-writing is drafting the credibility section. My colleague Megan Forward previously provided a “credibility assessment lexicon” that can come in handy when writing about a party’s credibility. A recent arbitration decision out of Alberta provides some valuable pointers on how to properly assess the credibility of a party’s evidence.
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