Are you ready to investigate a sexual harassment complaint?

“There’s no point in hoping a complaint will go away,” warns WSPS consultant Jennifer Threndyle. “Our world has changed and we can no longer look the other way. We have a legal duty to investigate.”

Jennifer cites two indicators that workplaces aren’t resolving harassment issues effectively:

• in 2018, Ministry of Labour inspectors wrote 11,662 orders under Section 32 of the Occupational Health and Safety Act, which deals with violence and sexual harassment
• employees are increasingly filing chronic mental stress claims as a result of harassment

Employer challenges

During Jennifer’s popular conference session, “You Have Received a Sexual Harassment Complaint, Now What,” participants routinely ask her, “When do I investigate? When do I not investigate?”

“I say, ‘Investigate everything.’ This doesn’t necessarily mean you must conduct a detailed investigation. You may be able to resolve a complaint with a verbal conversation - documented to show you’ve looked into the matter.”

Participants also tell Jennifer they struggle with determining what behaviour would be considered harassment. While the Occupational Health and Safety Act defines harassment*, perception also plays a role. “People may laugh at a joke in the workplace, but it may still cross a line and be considered inappropriate. If someone is uncomfortable with someone’s behaviour, or things that are said, that could be considered harassment.”

What you need to have in place before responding to a complaint

A Ministry of Labour guide, Workplace Violence and Harassment: Understanding the Law, identifies minimum requirements for employers under the Occupational Health and Safety Act, such as posting a violence and harassment policy in a conspicuous place, implementing a program outlining their commitment to minimizing the risk of violence and harassment in the workplace, how to report harassment, how to respond, what the investigation process would look like, and who would conduct an investigation.

“The guideline is a great starting point,” says Jennifer. “For instance, it gives you sample policies and procedures to do an investigation, and lays out all the steps in an investigation process.”

Special considerations

During her conference session, Jennifer offers a number of insights. Here’s a sampling:

• Provide human rights training as part of your onboarding and do refresher training. Under the Ontario Human Rights Code, employers are required to create and maintain a respectful workplace free of harassment and discrimination. Many employers aren’t aware of this requirement.
• When drafting your policy and program, take into account all potential sources of harassment, such as customers, clients, employers, supervisors, workers, strangers and domestic partners.
• If you receive a contentious claim, such as harassment by a member of the senior leadership team, consider bringing in a third party investigator. It depends what the complaint is, who’s involved, and what the risk is to the organization.

How we can help

Although WSPS does not conduct investigations, we can help you get the assistance you need.

1. Download the MOL guide, Workplace Violence and Harassment: Understanding the Law
2. Schedule an on-site awareness session delivered by a WSPS consultant, on dealing with workplace violence and harassment.
3. Check out WSPS’ extensive violence and harassment resources, including classroom training, e-courses, free downloads, and more.
4. For prevention of mental harms (including harassment) in the workplace, check out the Respect in the Workplace eCourse we offer, along with other options in our Healthy Workplace portfolio.

* The Occupational Health and Safety Act defines workplace sexual harassment as:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.