KerrLaw Logo JAMES D. L. KERR
CLIENT MEMO
TO:           Business Clients FROM:   James D.L. Kerr Lawyer
            17 – 151 Merton St.
            Toronto
, Ont., M4S 1A7
            Tel 416 485-4254
            Fax 416 485-8836
            
E-mail: jkerr@kerrlaw.ca
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            Certified Specialist Civil Litigation
DATE:      November 8, 2002
RE:          Why An Organization Must Have An Anti-Harassment Policy                      And Procedure For Complaint Management

This memorandum will outline the necessary elements of a workplace policy, employer liability, difference between discrimination and harassment and rights of harassers.

 
A.    Elements of a Policy and Procedure for Responding to Complaints

  1.  Statement of commitment to fairness/equal opportunity and a non-discriminatory and harassment-free workplace.
  2. Scope of the policy, meaning to whom it applies - all employees with an explanation that the workplace extends to workplace social functions, work assignments off-site, etc.
  3. Definition and examples of harassment with special emphasis on sexual harassment.
  4. Internal options to address concerns and complaints.  These can include personal action (direct dealing with the harasser, for example), reporting the concern to supervisor, filing a formal complaint that will be investigated. This section of the policy would also deal with the right to have a representative present and a commitment to confidentiality.
  5. Commitment to appropriate response by the employer: providing counseling, ensuring due process for the alleged harasser, imposing discipline or corrective action, up to and including termination of employment.
  6.  Advice concerning other options; specifically, the right to go to the Human Rights Commission.  Some publications also suggest that employees be told of their right to file a grievance or to go to the courts. I do not agree that this is necessary.

 It is important that the employee is required to acknowledge in writing that he or she has read, understood and agreed to abide by the policy.  This information should be filed in the employee’s personnel file.

 The big difference in policies, in our experience, is the level of detail about the complaint process and about management and supervisory roles.  Some policies separate the procedure to be followed by an employee who has a concern from the policy itself.  This is to allow posting and to avoid overwhelming employees with material.  Often, an organization will issue a summary in the form of a brochure.

The intention behind a more detailed approach is to address a legitimate employee concern that if he/she makes a complaint, it will be out of his/her hands.  Employees want to know in some detail what will happen if they register a concern. Most employees want the behaviour to stop, not to have an investigation where the entire workplace becomes involved and there are serious career consequences to all concerned. 

Employers often commit to investigate all because of their legitimate concerns about liability.  By providing employees with detailed information about how a concern would be dealt with, whether there is a formal or informal approach, I have found that many concerns do not escalate into full-blown complaints that have to be investigated.

B.   Employer Liability within the Human Rights Code

Responsibility lies first with the perpetrator.

Employers are responsible at law for providing a non-discriminatory workplace. Employers who fail to do so workplace may be found liable for discrimination or harassment by employees and even by suppliers or customers.  

Employer liability can be vicarious (indirect) or personal (direct).  A provision in the Ontario Human Rights Code makes employers liable vicariously for discrimination but not harassment of their employees or agents unless the perpetrator was a manager, in which case, there is no exception.  This is so even where senior management was unaware of the problem. 

In the case of harassment, an employer will not be liable if it has exercised “due diligence” to prevent harassment and if the perpetrator was not a manager. 

Whenever a manager (or even lead hand) discriminates or harasses a co-worker or subordinate, the employer is automatically liable.  In those cases, “due diligence” will help reduce the penalty applied.

Due diligence “ includes:

  1.  the existence of a publicized policy that prohibits discrimination and harassment (meaning distribution of the policy, training);
  2.  the existence of an internal mechanism for recourse against discrimination and harassment (investigation and counseling); and
  3. appropriate response by the employer to the wrongful acts, meaning discipline and corrective action and a commitment to no reprisal.

Where the acts were those of a co- worker, the employer may escape liability by showing it took all reasonable steps to prevent and respond to claims of harassment and discrimination.

The courts and human rights tribunals have held consistently that the existence of a policy alone is insufficient. The employer must show that it made the policy known to employees and quickly responded to complaints. 

A human rights tribunal has said that the employer is not expected to maintain a “pristine working environment” but there is a duty to take prompt action.  The level of response must bear some relationship to the incident, including the steps taken to alleviate, as best it can, the distress caused within the work environment and to reassure those concerned that it is committed to the maintenance of a workplace free of harassment.

Another tribunal has said that an employer may be required to investigate all serious allegations of harassment. Otherwise, through its inaction, it risks encouraging improper conduct. So, policies must include a commitment to investigate all formal complaints.  These investigations can be done internally by a trained person, or by an outside investigator.

I enclose an extract from a Policy and Procedure Booklet that has been developed by a leading authority in the field.  It sets out the necessary components. It is acceptable to have separate documents and many employers simply summarize the information into a brochure that is given to employees.


C.        Difference between Harassment and Discrimination

A legal distinction is made between discrimination and harassment for employer liability. For this reason, it is important to have a basic distinction between the two.

Simply, discrimination can be intentional or unintentional (adverse effect) and can consist of a single act. Harassment is, usually, an intentional act and usually involves a pattern of behaviour. 

 As an example, discrimination because of sex could be a failure to hire a candidate because she is a woman or to hire women generally, where no intent was involved.  Harassment is generally a course of conduct (including actions and words) that demeans someone because of their personal characteristics (e.g., sex, race, age, disability, religion). 

 Sexual harassment can include non-sexual but gender-related comments (e.g., frequent, publicly made comments from a supervisor about a subordinate such as “what do you expect from a woman”?) These comments would be offensive both to the woman employee and could create a hostile work environment.  Equally, racial harassment could include comments made about a particular racial group that would poison the work environment for employees generally.

Sexual harassment can also include quid pro quo (meaning “this for that”) where a positive response to sexual advance is a condition of continued employment, promotion, salary increase, etc.

The Ontario Human Rights Commission has issued a Policy on Sexual Harassment and Gender Related Comments and Conduct.  This lengthy policy sets out examples and the relevant sections of the Code. Copies are available from my office on request.

 
D.        Due Process for Alleged Harassers

The courts have been clear that the employer must treat the alleged harasser fairly.  As an understatement, an allegation of harassment is career-limiting, so that the uncorroborated evidence of the complainant will not be enough to support dismissal. 

Also, the courts have not supported an employer’s decision to terminate an employee against whom a harassment claim is made without an investigation.

Over time, the tribunals and courts have identified the following factors as being relevant in determining the appropriate employer response to allegations of harassment:

To get this information, the employer must conduct an investigation.


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DISCLAIMER: The foregoing is not intended to be a comprehensive guide to the applicable law. General Client Memoranda and mailings from James D.L. Kerr ● Lawyer are intended to inform clients and acquaintances with respect to current issues that may be of interest to them. Memos are current to the date shown on the Memo. The law is constantly changing, however, and for that reason a Memo may not be completely accurate after it's stated date. Where circumstances warrant, the advice of a lawyer or other qualified professional should be obtained.

2005 James D.L. Kerr