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Hindsight for 2020: Reflecting on the past decade to help us navigate the next

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2020 is around the corner.  Although I find this somewhat alarming and difficult to digest, I suppose the warning signs were fairly obvious.  And I’m not necessarily talking about self-driving cars and intuitive robots per se; just the inevitable passage of time.  As one decade ends and another one is due to commence,  it strikes me as an opportune moment for reflection: a time to look at what we have come to know about issues of harassment in the workplace and consider what insight the lessons of the last decade offer for the future of workplace investigations in 2020.

Of course, one of the most remarkable developments in the 2010’s was the #MeToo movement.  This was a watershed moment for bringing issues of gender inequality and sexual harassment into the forefront of social debate, law and policy reform.  It highlighted the power of social media as a platform for expressing stories and establishing connections across geographic and socio-economic divides.

But this was not the only noteworthy development to impact our understanding of harassment and discrimination.  Here are five other observations about the evolution of the law so far and what clues it offers for the next chapter:

  • Codification of the duty to investigate

In September 2016, several substantive amendments to Ontario’s Occupational Health and Safety Act came into effect.  Of significance, this included the statutory entrenchment of the employer’s duty to investigate incidents of harassment in the workplace.  British Columbia and Alberta also have express obligations on employers to investigate within their respective statutory schemes, and federal employers have been preparing for a broad range of similar updates to the Canada Labour Code to take effect in 2020.

All of these reforms were precipitated by a convergence of social and political factors that took root years before changes in the legislative landscape took effect.  Looking ahead, we are likely to see further incremental evolution of the legislative duties of employers to prevent workplace violence and harassment; and to respond appropriately, when it does occur.

  • Harassment is not a static concept

Despite some variations across jurisdictions, there is broad consensus on the key elements required for conduct in the workplace to constitute harassment.  This includes the fact that the conduct in question must be unwelcome, or reasonably known to be unwelcome.

What is reasonably known to be unwelcome? Are current views on what behaviour is acceptable in the workplace the same today as they were in 2009? Or 1999?  Case law suggests not.  Rather, the decisions of human rights tribunals and courts across Canada reflect that what is determined to be objectively (or reasonably) known to be unwelcome, tends to reflect the particular social norms that prevail at the time.  People are no longer required to tolerate certain acts that were once shrugged off as unfortunate realities – a boss that barks demands at you from across the office – a work environment characterized by racially insensitive and sexist “banter” or “humour” – these were once accepted and regarded as the “norm” in some settings.  A small price to pay for secure employment.

Fortunately, the concept of what ought to be reasonably known to be unwelcome necessarily evolves; it shifts alongside of social norms.  This is a welcome feature of the law, in my view.  It points to the law’s capacity to change.

The parameters of what constitutes harassment will continue to evolve over the next decade.  The law will necessarily come to reflect changes in values and the demographic composition of the workplace.  The past decade bore witness to a greater acknowledgement of the importance of gender equality, mental health, diversity and inclusion.  These same issues are likely to be front and centre of important judicial commentary and analysis in the 2020’s.

  • What and how we communicate is also evolving

Merriam-Webster Dictionary recently announced that “they” was the 2019 word of the year.  Searches for the  nonbinary pronoun increased by 313% in the last year.[1]  The American Psychological Association developed bias-free language guidelines for writing about gender and officially recommended that the singular they be used in professional writing over “he or she” when there is a reference to a person whose gender is unknown or in correspondence to a person who prefers they.[2]

Adhering to these guidelines may involve a steeper learning curve for some workers than others.  Workplaces frequently involve a cross-section of individuals with different backgrounds and communication habits that often reflect generational divides.  Learning to communicate respectfully across these differences will be essential to managing a harassment free work environment.

The way we communicate is also evolving.  Email, text, and social media are not new.  But over the last decade, they have become far more commonplace and employees are far more likely to be accessible by electronic methods of communication, at any given time of day or night.  With an increase in satellite offices and employers offering options to work remotely, face-to-face interactions with colleagues decreases.  The potential for miscommunication and misinterpretation of electronic communication becomes all the more problematic.  Moreover, a permanent record can result by choosing to respond in a moment of frustration.

Why does this matter to harassment and workplace investigations? Well, many allegations of harassment revolve around communication.  And many workplace investigations require an investigator to discern whether the communication in question was respectful or not.  With a growing rate of workplace interactions taking place electronically, investigators will need to hone their appreciation for the nuances in written communication and how certain features can reasonably be perceived as harassing in nature.  A smiley face emoji between colleagues is one thing – a winking emoji from a superior to a subordinate, may very well carry a different connotation.  Not only that, but harassment in this era of electronic communication can take on new forms.  The phenomenon of cyberbullying, online stalking, or trolling individuals on social media platforms has shown up in workplaces as well as schools and universities.

  • The nature and collection of evidence

It follows that with the increased prevalence of electronic communication in all its forms (email, text, twitter, Facebook postings) the nature and collection of evidence in workplace investigations has expanded and will continue to do so.  The workplace is no longer confined by time and space and neither is the potential breeding ground for unacceptable conduct.  As a result, investigations will require some technological savvy to collect and secure the relevant data.  Forensic data experts may be needed in some cases where there are concerns about deleted texts or images, for example.

  • Advances in science enhance investigation techniques

Investigating harassment and discrimination can be a delicate and challenging task.  It requires sifting through a lot of subjective evidence and assessing human behaviour.  Major advances in our understanding of the conscious and unconscious mind have helped to add a level of sophistication to the process.  For example, we are learning more and more about the neurobiological impact of trauma on the brain and uncovering unconscious roots of biases.  As the body of scientific evidence in these areas grows, we are seeing that the insights are impacting how investigations are conducted, and the weight we ascribe to certain evidence.

Take one of the oft-cited hallmarks of credibility – the consistent re-telling of a story.  In the past, a complainant who adds new details to their narrative when recounting an incident of alleged assault, or whose evidence is fragmented, might have been seen as lacking credibility.  No longer is this necessarily the case.  We now understand that memories from a traumatic event are encoded differently and the investigation itself must be handled carefully so as not to re-traumatize the victim.  More and more workplace policies are incorporating these learnings by ensuring that investigations adopt a trauma- informed approach.

Over the last decade, we have witnessed more widespread acknowledgment and understanding of harassment and discrimination in the workplace.  The precise trajectory of the law for the next decade remains to be seen.  Going into 2020 equipped with insights from the past will not only serve to enhance the quality of workplace investigations, it will also ensure that the outcome of an investigation process is of value and utility to the organizations and people involved.

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[1] https://www.merriam-webster.com/words-at-play/word-of-the-year

[2] https://apastyle.apa.org/blog/singular-they