A dozen recent cases dealing with workplace harassment all reveal a three-part message for employers who have been alerted to issues of harassment in the workplace:
Individual cases highlighted circumstances in which employers did not meet the duty to respond. Below you will find snapshots of issues of which employers must be mindful:
Several cases tell the story of managers who take no action despite having clear and present reason to do so. Two factors that managers should recognize as red hot buttons with respect to harassment are:
Many cases relate the bewilderment of managers before a so-called grey area of workplace issues. Faced with their own particular circumstances, they all believe they have acted reasonably in not responding to issues of harassment. Tribunals and Courts tackled these excuses head on, removing them from the grey area (and effectively into the red hot button area). The excuses offered by the managers and rejected by Arbitrators and Tribunals alike are:
Other cases highlight the issue of the adequacy of the employer's response. The goal of an employer's response is to make the alleged harassment cease and to restore the workplace environment...
Remedial action taken by the employer in the wake of an investigation will not protect it from litigation if the action taken was inadequate for either the complainants or his/her coworkers.
One recent case highlights two ways in which the employer's actions in response to a harassment complaint made things worse for an employee who had been the victim of racial harassment:
He did not take measures to protect the complainant from retaliation When retaliation occurred, he placed part of the responsibility on the victim
Without adequate follow-up, remedial action taken by the employer can lead to retaliation that been devastating for complainants and ultimately lead to employer liability.
In a 2002 case, a Human Rights Tribunal outlines the test for whether an employer has responded reasonably to allegations of sexual harassment.
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