Authors: Megan Forward

Special note to BC readers:

If this subject is of interest to you, you may wish to attend our related workshop. Some spots are still open for the following sessions – we recommend registering soon. We hope to see you there.

Conducting Sexual Harassment and Violence Investigations
November 27-28, 2018 in Vancouver, BC
This advanced-level training is a must for any staff who may respond to and/or investigate sexual harassment or sexual assault complaints.

Workplace Investigations in the University and College Context
November 29, 2018 in Vancouver, BC
This training examines the demands and challenges that investigations present in the university and college context, and allows for a deep dive into possible solutions.

RT Policy Reflection #2:

Writing policies and procedures in the era of #MeToo

In addition to workplace investigations, assessments and training, one of the other services that we provide at Rubin Thomlinson is policy reviews. In this capacity, we review organizations’ workplace harassment policies (among others) to ensure that they are effective and compliant with the relevant legislation. 

Over the course of my next several blog entries, I will be exploring and reflecting on some of the biggest problems, flaws and oversights that I encounter when reviewing such policies.

With the second anniversary of the Bill 132 changes fast approaching (September 2018), my hope is that organizations can use some of this insight to shape future iterations of their own workplace harassment policies which, pursuant to the legislation, must be reviewed on (at least) an annual basis.

For the first post of the series, click here. The second post in this series will consider the challenges with respect to writing institutional policies and procedures in the era of #MeToo.

****

In light of Bill 132 and the #MeToo movement, we are seeing a lot of employers and institutions (e.g. universities and colleges) that are updating their policies and procedures not only to reflect the new legislative requirements but also changing social and political norms when it comes to sexual harassment and violence.

Among other things, we see policies and procedures that do a better job of recognizing the role that trauma can play in a complainant’s experience or response to sexual harassment or violence. We see policies and procedures that place a stronger emphasis on providing support and helping the complainant to retain some sense of autonomy and control through the investigation process.

For the most part, these changes can be great. They can help to remove some of the barriers to reporting sexual harassment and violence and prevent these kinds of behaviours from being driven underground. In some cases, however, we have seen some content appear in these policies and procedures that can impede the objective of providing a fair, impartial and timely investigation.

Here are our suggestions for how ensure that your investigations are (and are perceived to be) fair and impartial.

  1. Neutral language

Some policies have adopted the term “survivor” to refer to someone who has survived and is persevering in the face of sexual harassment and violence.  Although this term may be appropriate in the advocacy world or in the context of providing support to some, when viewed in the context of the investigation process, it suggests that a conclusion has already been made with respect to allegations (i.e. that you have already concluded that the person was sexually harassed or assault). The term “survivor” could cause some people to conclude that the investigation is not impartial and is slanted in favour of the person who made the complaint.

Instead, we recommend that employers and institutions use the term “Complainant” to the person who made the complaint or raised the allegations and “Respondent” to refer to the person whose conduct is the subject of the allegations.

  1. Good faith language

Although this is rarer than the previous example, we have seen communications from organizations that incorporate “we believe her”-type language and statements. Given the long history of women not being believed when they complained of sexual harassment and violence, we can appreciate that employers or institutions want to ensure that complainants understand that their complaints will be taken seriously. That said, “we believe her”-type language and statements, again, suggest that the conclusion of an investigation is forgone. In other words, it suggests that the investigation process will not be impartial.

Again, I am not suggesting that this language has no place in these policies. It may be appropriate when talking about support and advocacy-related activities. What I am saying is that employers and institutions consider this language when it may be applied to the investigation process.

Instead, we recommend that employers and institutions that use language to emphasize that complaints will be taken seriously and “in good faith.” This kind of terminology is more consistent with an impartial process.

  1. Lack of supports for Respondents

During the course of policy reviews, I am often impressed and pleased by the quality and range of support services available to people who experience sexual harassment and violence – particularly on university and college campuses. The policies reference employees and entire offices that are dedicated to the provision of specialized support for those individuals. This pleasure, however, sometimes turns to concern when I turn the page to look for a section on support for Respondents only to find it entirely absent or inadequate.

When reviewing these policies, it often becomes very clear that, in contrast to Complainants, it seems that some employers and institutions spend very little time thinking about the investigation from the Respondent’s perspective and what needs for support they might have. This is even true of policies that do contain a section on support for Respondents. In other words, the options and guidance that they provide is often vague or general as compared with the information provided to Complaints which may contain phone numbers, addresses and emails, among other things.

Although we can appreciate that Complainants have needs for support that are unique to them and their role in the allegations, employers and institutions must remember that, in order to provide a fair investigation process, they must provide a comparable level and quality of support to Respondents. While this may be administered through a different office or program (i.e. not the office of sexual violence) it is an important part of ensuring that the investigation process not only is fair and impartial and that it appears to be fair and impartial to the parties involved.

It should be noted that support for respondents is particularly important where the respondents in question are young and unsophisticated, for example, university students.

*****

All of this to say that, while a lot of the changes to policy and procedure to reflect evolving social and political norms are welcome and completely appropriate, employers and institutions have to be careful about how this content appears in the context of an investigation.

If employers or institutions want to incorporate this content into their policies and procedures, they should take steps to clearly delineate the sections of the policy that relate to the provision of support from those that relate to the investigation process. To make sure that there is no question that the content does not apply to the investigation process.

To be safe, however, we recommend that employers and institutions err on the side of more neutral language through their sexual harassment and violence policies (as indicated above),