Meeting #2: Workplace Harassment

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:

• Stop the Harassment
• Investigate when needed
• Restore the Environment

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:

Red Hot Button Issues 

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:

• Red Button Issue: Written complaint
• Red Button Issue: Verbal complaint

Excuses, Excuses 

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:

• Excuse: Workplace culture of joking
• Excuse: Promise of confidentiality
• Excuse: Alleged harasser does not work here
• Excuse: Complainant does not even work here
• Excuse: Alleged harasser is a manager
• Excuse: Complainant did not come forward

Inadequate Response 

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...

• Inadequate response for coworkers
• Inadequate response for complainant

Remedial action taken by the employer in the wake of an investigation will not protect it from litigation if the action taken was inaquequate for either the complainants or his/her coworkers.

Employer's Response Leads to Retaliation

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 occured, 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.

Meeting the Test in Employers Response

In a 2002 case, a Human Rights Tribunal outlines the test for whether an employer has responded reasonably to allegations of sexual harassment.