I had the opportunity to participate recently in a discussion on managerial action/inaction in relation to harassment complaints. One of the participants commented that it was hard to believe, but true, that there were still managers in her workplace who did not take action of any sort after an employee had reported concerns of harassment or sexual harassment because the employee had not filed a formal complaint. I began thinking about the many employees who are promoted into manager or supervisor positions and receive little or no training on how to effectively manage. Knowing that fact makes it hard to react in anger to the lack of action although it does not absolve an organization of liability exposure for employee conduct that reaches the threshold test of “knew or ought to have known”.
So let’s consider that you are a manager and one of your direct reports has come into your office to “vent” about “inappropriate behaviour” of a colleague. What do you do?
Take it seriously – If someone seeks you out to tell you about a colleague’s comments, tone, “colourful” language, jokes, personal information, and invasion of personal space you should recognize that as qualitatively different than mere grumbling. Listen to what is being reported and do not be so quick to agree with the assertion that it is just “venting” that brought the person into your office in the first place. Keep in mind that there may be instances when “just venting” is serious enough for an organization to go forward and investigate — irrespective of the complainant employee’s wishes;
Know the Policy/Law – You do not have to be a human resource professional or lawyer to know your organization’s Harassment and Discrimination Policy or the provisions of Bill 132 or the Occupational Health and Safety Act or Human Rights Code. At a minimum you must know the definitions of harassment, sexual violence and discrimination and the types of conduct, comment and actions that may reach the level of harassment, sexual violence or discrimination. Bill 132 – Sexual Violence and Harassment Action Plan Act – leaves no doubt that there does not need to be a formal complaint before a matter is investigated. To the extent that Bill 132 amends current key pieces of legislation, the phrasing now will be “incidents and complaints” of sexual violence or workplace harassment. If there was uncertainty in the past, there should no longer be any doubt that an employee does not require a formal written complaint before a manager or supervisor will need to follow up on it. Some common misconceptions are: silence equates to consent; harassment requires intention; you can joke about a group(s) in which you have membership; and it is not harassment if no one said to stop;
Don’t assume, make some enquiries into the facts – Knowing one or all of the parties implicated in the complaint plays no role in whether the complaint has merit or should be investigated. Avoid making any comments to the effect of “I’ve never seen X act that way” or “I can’t believe that Y did that”. Those types of statements can leave doubt in the complainant’s mind about your impartiality or, worse yet, may make the complainant reluctant to continue with the process. Ask some questions and probe into the details in a non-judgemental way;
Seek assistance and don’t delegate the follow up to the complainant – If you do not know what to do, ask someone. If your organization has a Human Rights Specialist or Human Resources unit, you should immediately reach out to the employee(s) who staff those units. That is where the expertise is and that is where the assistance will invariably come from. Do not advise the complainant to seek out assistance on his/her own. As a representative of the organization, it is your responsibility to assure the employee that you will be following up with the appropriate person and reporting back to him/her with next steps. Ensure that you act quickly to seek advice. Sitting on a complaint because you are unsure of where to go to ask for help will only worsen the situation; and
Investigate – It’s the Law – Well-meaning managers can run afoul of their legal obligations when they accede to the employee’s wishes to “not mention their complaints to anyone”, especially the respondent. The difficulty with that course of action is that when a complaint is made to the manager, the organization now has knowledge of a matter on which it is now required to take action. By agreeing to maintain confidentiality the manager may unknowingly be placing the organization at risk. Moreover, taking no follow-up action may signal to the employee that his/her concerns are not important and will not rectify the situation that initially drove the employee to your office.
Addressing workplace complaints has never been easy and soon more onerous obligations will be placed on organizations when Bill 132 is passed. In many significant respects, it changes the legal landscape with respect to sexual harassment and sexual violence. Policies will have to be developed, procedures for reporting and investigating “incidents and complaints” must be established, and the process determined for advising complainants and respondents of the outcome of the investigation and any corrective action taken or to be taken. Managerial responsibility is exactly that. It is your responsibility to take the appropriate and necessary action to ensure a safe and healthy workplace.
About the Author: Toronto Employment Lawyer Kenda Murphy is a lawyer with over 20 years of experience in civil and criminal litigation. Over the course of her career, she has been in private practice and worked in the public sector with the Public Prosecution Service, Department of Justice and Health Association Nova Scotia. Most recently Kenda was the Associate Director & Counsel of the Employee/ Labour Relations Unit at Queen’s University.