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In our practice as workplace investigators, we regularly conduct investigations into allegations of sexual misconduct. Investigations are critical to ensuring a fair outcome and a safe work environment when these types of serious allegations are made.
Employers and workplace investigators face a continually-evolving understanding of “discrimination” under the Ontario Human Rights Code (the “Code”). In recent years, the case law has recognized that discrimination can occur in a wide variety of forms, often subtle and indirect.
As a workplace investigator and a team lead for a group of fellow RT investigators, I spend a fair amount of time thinking about reply interviews. Anyone who has conducted an investigation themselves or reviewed an investigator’s report can probably appreciate why: the reply or follow-up interview is a place where the need to balance the fairness, neutrality, thoroughness, and confidentiality of the investigation really comes into focus.
A random question occurred to me the other day, “Could disciplining an employee due to their body odour be a form of discrimination?” This question occurred to me when I did a double take reading the headline of the Washington Post article, “Lawsuit says American Airlines kicked 8 Black men off plane, citing body odor.”
My colleagues Christine Thomlinson and Lori-Ann Green recently wrote about how an organization’s respect at work policies, often written to comply with its legal obligations and to correspond with legislative requirements, may use legal and technical language which can be difficult to interpret, and may, from the perspective of those whom the policy is designed to protect, not be easy to navigate.1
As a workplace investigator, maintaining neutrality and avoiding bias is always top of mind. I found a recent Federal Court case, Whitelaw v. Canada (Attorney General), to be helpful, because it provides a great summary of the case law in this area, and insight into what the Court evaluates when dealing with allegations of procedural unfairness in investigations.
At the outset of an investigation, a complainant may ask whether their identity will be disclosed to the person who is the subject of the complaint (the “respondent”). Investigators need to be careful about how they answer that question.
Most Canadian jurisdictions require employers to have policies that address issues like workplace harassment, discrimination, and violence. In our investigation practice, we read many of these “respect at work” policies, and the overwhelming majority of them are clearly written to specifically comply with legislative requirements.
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