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Serious insight for serious situations.

Serious insight for serious situations.

Insights

Reflections and news direct from Rubin Thomlinson.
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Policy pet-peeves continued: Crafting a complaint and investigation process in your policy that will make workplace investigations easier

I have seen some policies that set out a specific hierarchy for reporting a complaint. The order sometimes starts off with addressing the matter directly with the person engaging in the unwelcome behaviour, followed by reporting it to a supervisor, that supervisor’s manager, Human Resources, and in cases where Human Resources is engaged in the alleged wrongdoing, a member of the executive team and/or an independent organization.

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Maybe not that GIF: Digital blackface and other ways in which anti-Black racism may present in the workplace

Call it a job perk? As a workplace investigator, I not infrequently get questions from friends, family, people I’ve just met, about whether Situation XYZ may be an example of discrimination and/or harassment. A recent discussion about digital blackface led me to think of other possible examples of how anti-Black stereotypes and microaggressions can manifest in the modern workplace.

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The booze blog

Alcohol and work events often don’t mix well. Some know this from personal experience. Others, like us, are called upon to investigate allegations arising from work events at which alcohol and “good times” were flowing freely.  It will come as no surprise that, as workplace investigators, the issue of alcohol consumption and intoxication pops up with some frequency in our work.

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Policy pet-peeves: Crafting a workplace harassment policy that will make workplace investigations easier

The first step in any new investigation is to review the workplace harassment policy. As both an investigator and someone who has written workplace harassment policies, I sometimes find myself sighing deeply as I conduct this review, knowing that some parts of the policy are going to make the investigation process harder – not only for me, but for the parties and the employer as well.

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Acquiescence, not consent: Lessons from N.K. v. Botuik

There are many potentially thorny issues that await an investigator who is asked to make findings about a complainant’s consent to an intimate relationship or to a sexual encounter with a respondent, including the effects of trauma on memory, the potential involvement of intoxication and, of course, grappling with the complicated and nuanced definition of consent itself. The recent Human Rights Tribunal of Ontario decision in N.K. v. Botuik, 2020 HRTO 345, provides a useful illustration of another issue that we might encounter in an investigation that involves a sexual relationship between two employees: distinguishing coerced acquiescence from true consent.

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Prosko v. The District of Taylor and another: Grappling with borderline sexual Harassment Cases

Some of the more difficult cases of sexual harassment that we deal with as workplace investigators are what we call “borderline” cases — where the behaviour at issue straddles that line somewhere between unwelcome and simply misguided. What types of conduct in the workplace are serious enough to qualify as sexual harassment? A recent decision of the British Columbia Human Rights Tribunal, Prosko v. The District of Taylor and another, highlights some of the challenges these types of cases present.

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