As discussed in our previous blog, workplace investigations are critical to resolve workplace misconduct and ensure a healthy and safe workplace for all employees.
This blog will dive deeper into workplace investigations specifically in cases of alleged workplace harassment and what employers should have in mind as they proceed. Harassment complaints and investigations require a nuanced approach during an investigation.
What is Workplace Harassment?
Workplace harassment is defined in the Occupational Health and Safety Act as “a course of vexatious comment or conduct against a worker in a workplace that is known or ought to be known to be unwelcome”.
The Ontario Human Rights Code similarly defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.
There are many different types of workplace harassment to be aware of:
Sexual Harassment
Sexual harassment is a course of conduct or comments against a worker because of sex, sexual orientation, gender identity, or expression or making sexual advances where it is unwelcomed and there is a power imbalance (i.e., the person is able to grant or deny an advancement).
Examples of sexual harassment include the following:
- Sexual advances or demands that the recipient does not welcome or want;
- Offering a benefit in exchange for a sexual favour (explicitly or implicitly);
- Displaying offensive material of a sexual nature in the workplace (i.e., screensavers, sending pictures or websites to other employees); and
- Physical contact that is sexual in nature.
Harassment based on race, religion, ethnicity, and colour.
Examples of this form of harassment include:
- Racial jokes
- Singling out one person because of their race, religion, ethnic origin, etc
- Racially related name calling
- Teasing languages, accents, or religious clothing choices.
Harassment based on pregnancy or family status.
Examples can include:
- Making negative comments about a pregnant woman taking maternity leave
- Not creating appropriate arrangements for breastfeeding
- Being overly critical of pregnant women’s work
- Assuming a pregnant woman or parent is less capable of a job or task
Harassment based on sexual orientation
Examples of this form of harassment can be exhibited as:
- Homophobic jokes or slurs
- Singling out a person’s sexual orientation
- Excluding an employee because of their sexual orientation (explicitly or implicitly)
Bullying
Bullying can appear trivial when written in a complaint, however, bullying in the workplace can be extremely distressing for employees subject to bullying behaviour.
Bullying can be physical, non-physical, psychological, and online. Some examples of bullying in the workplace include:
- Following another employee in an intimidating way
- Continuous unwanted workplace pranks
- Destroying property
- Disrespectful body language
- Ignoring or not making eye contact with the victim
- Verbally yelling at the victim or using a mocking tone
- Spreading rumours on social media
Toxic Workplace
An employee may bring a complaint that the workplace has been poisoned. This is typically the result of persistent conduct that has made the workplace unbearable.
Investigating Workplace Harassment
Harassment in the workplace is a particularly sensitive subject that must be addressed with care and understanding from the employer. There are a few considerations that are particularly relevant when investigating harassment allegations.
Hesitancy to bring a formal complaint
Employers should be aware that employees may not file complaints right away or may have concerns about proceeding with an investigation. There are various reasons for this:
- Fear of losing job or potential advancement
- Embarrassment
- Concern about co-workers finding out
- Feeling like it is their fault or that others perceive it as their fault
- Not wanting their co-workers to treat them differently.
To help employees with these concerns, employers should foster a workplace where complaints are taken seriously and ensure that the complaint process is clearly outlined in the relevant workplace policies.
Bias
Harassment allegations are often based on each party’s recounting of the situation, sometimes there can be limited tangible evidence available as well as limited witness evidence. When investigating harassment complaints, the investigator will often have to rely on the complainant and respondent’s memory and perception of the events that took place.
Humans naturally hold their own preconceived notions and opinions based on their life experiences. However, in a workplace investigation, it is critical to remain as neutral as possible. Rather than ignoring the possibility of bias or preconceptions, employers should explore and address any assumptions or bias that may impact the fairness of the investigation and thus the validity of the findings.
Awareness of potential biases will assist the employer or investigator to challenge their initial reaction to a complainant or respondent if a misconception arises during the interview or when determining findings.
There are different types of biases that can be prevalent in workplace harassment investigations:
- Confirmation Bias: Favouring or seeking out information that reinforces your own beliefs or opinions.
- Halo Effect: Assuming that one positive quality about an individual means that all other qualities or actions are positive as well. This can apply in the opposite way as well, when one negative characteristic shapes the view of the other characteristics negatively as well.
- Priming: When expectations or previous exposure impacts the beliefs about the complaint or allegations.
Harassment allegations may give rise to stronger unconscious biases as investigators are relying on the party’s subjective experiences and personal emotional responses when assessing the situation. Specifically, sexual harassment complaints can attract many different assumptions and biases due to societal narratives and workplace culture. It is important to be aware of the biases that can arise during workplace investigations and ensure that the investigation is completed in a neutral and open-minded process.
Credibility
As mentioned, workplace investigations into harassment often boil down to one person’s word against another’s. Workplace investigations must consider the credibility of both parties in order to come to conclusions when the direct evidence is either not available or incomplete.
When assessing credibility, it is important to acknowledge the different biases detailed above. Unaddressed bias can lead to misleading or invalid credibility assessments.
Credibility of a story can be assessed by comparing it to the conclusion that from the perspective of any reasonable person, it makes sense. More specifically, credibility can be assessed by considering the following:
- If the story is told in a logical manner
- Whether the individual is defensive when recounting the events or answering questions
- Whether the individual is forthcoming and offers information paints them in both a positive light as well as negative
- Whether they accuse others of wrongdoing when answering questions
- Whether they are consistent when speaking about their experience or what was witnessed
The above is not an exhaustive list of considerations when assessing credibility, there are other factors that an investigator may consider depending on the circumstances.
Employers and investigators should be careful of conflating reactions as proof that a story is not credible. For example, sweating or appearing nervous and not making eye contact is not necessarily a determinative factor of credibility but instead that the individual is nervous.
Workplace harassment must be addressed quickly and appropriately through effective and fair workplace investigations.
Contact us
Sultan Lawyers provides comprehensive workplace investigation support to employers. This includes a full review of specific matters in the workplace and a review of all related policies and procedures. For further information and assistance, please contact the Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or here.
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