RESPECTFUL WORKPLACES

It is always timely to review your non-profit’s policies and preparedness for handling misconduct in the workplace. The following piece, excerpted from a longer piece by lawyer Clea Parfitt, breaks down how to protect your nonprofit’s liability and, most importantly, how to protect your employees and volunteers from sexual harassment and assault.

INTERNAL WORKPLACE PROCESSES REGARDING SEXUAL ASSAULT, SEXUAL MISCONDUCT, INCLUDING HARASSMENT

1. Support to complainant

Before becoming involved in any workplace process, a complainant should have available to them a confidential listener to help them think through what has happened or is happening, and to learn more about their options, both within and beyond the workplace.  The listener should have counseling skills, be able to work in a trauma-informed way, and be knowledgable about what legal options exist, and what each offers.  The complainant should be encouraged to think about what they are looking for, and to think about any requests they would have of any internal process.  What is said to this listener must be confidential, and must not be subject to sharing with anyone.  As any records of a confidential listener may be subject to disclosure in a legal process, those records should be minimal and generic.

2. Confidentiality

Complainants need support, and this means they must be able to tell others what is happening with them.  Often they will have spoken to others about their allegations before coming to the employer.  Taking the position that complainants cannot talk about their allegations or any internal process is harmful to the complainant, may create risk for others in the workplace, and may create risk that any investigation is incomplete.  Complainants must retain the right to talk about their own information, including that they are participating in an investigation.  It is reasonable, however, for an investigation process to require that participants not disclose information shared with them from others. 

3. Resolution with Respondent

In some instances, it may be possible for a complainant to resolve matters directly with the responding individual, with or without the assistance of a third party, like a mediator.  This should not be broached unless the complainant has good support, and has been fully advised about their options.  Extreme care must be taken in suggesting this as most complainants feel very uncomfortable dealing at all with someone they feel is or has harassed them.  As well, complainants often feel acutely that they do not want to have continuing contact with their harasser in the workplace.  

4. Legal Duty to Investigate

In the Yukon, the Workers’ Safety and Compensation Board is responsible for occupational health and safety, as described in the Workers’ Safety and Compensation Act. The WSCB takes the position that employees are required to report workplace bullying and harassment, and employers are required to have policy statements and complaint procedures in place to respond to bullying and harassment complaints.

An employer is required to take all reasonable steps to prevent, where possible, or otherwise minimize bullying and harassment.

5. Resolution with Employer

Generally, a complaint to an employer of sexual harassment or misconduct, or bullying should result in an occupational health and safety investigation and some sort of outcome.

Sometimes complainants prefer to negotiate a resolution directly with an employer.  Complainants may write to the employer setting out the harassment allegations and attempting to enter into settlement discussions with the employer directly without an investigation.  This is more likely to happen if the employee has decided to leave.  The theory behind this approach is that employers are liable for sexual harassment in the workplace, and so should be willing to enter into a resolution over such allegations.

Before entering into a negotiated settlement, the employer should take care to think about how this will impact its occupational health and safety obligations to investigate and remedy.  In general, employers are less likely to resolve harassment matters before some sort of process has been commenced than they are to deal with allegations of wrongful dismissal, for example.

 6. Nature of Internal Investigations

There are several different legal avenues for a complainant to consider when dealing with sexual misconduct and sexual harassment.  These legal avenues divide into two groups:  responses that are driven by a body charged with maintaining order in a space, and responses that provide complainants with an opportunity to have their concern heard and adjudicated by a neutral adjudicator.

In the first camp are criminal charges, where the state through a crown prosecutor tries to prove a breach of the laws the state has created to maintain good order, and if a breach is proven, to punish that breach.  In a criminal matter, the complainant is a witness and not a party and does not receive a direct remedy.

In the second camp are adjudicative processes, including grievances and human rights complaints, where a forum and a process is created for hearing a complaint and adjudicating it.  In these processes, the complainant is a party, and may receive a direct remedy, including damages.

Internal investigations often look like adjudicative processes to meet the needs of the complainant, but are not.  They are really more like a criminal charge, where the employer is interested in determining whether the employer’s rules for good order have been broken, and perhaps in punishing that breach if it is found. In internal investigations of this sort, complainants are usually only witnesses, and will generally not receive a direct remedy.  Their interests are not the focus of the process.

Even an occupational health and safety investigation is about the employer enforcing a set of rules, namely the Workers’ Safety and Compensation Act. However, its focus on health and safety, including importantly that of the complainant, can lead to a process that is more focused on remedying a bad situation, which may benefit the complainant, although not with direct damages.

Complainants who think that their complaint is being investigated to help them are often bitterly disappointed by internal investigations which generally do not do this.  These investigative  processes can be very harmful to complainants.  It is not unusual for complainants to say that the internal processes they went through were more damaging to them than the original harassment. 

Another key aspect of an internal investigation in relation to sexual harassment is that even though such an investigation is considering whether a breach of the Human Rights Code took place, it is considering this only in relation to the actions of the person against whom the complaint was made. The Human Rights Commission is clear that breaches of the Human Rights Act are primarily or even wholly the responsibility of employers. However, employer investigations of sexual harassment generally never address the liability of the employer. Instead, those investigations are wholly concerned with the actions of the individual alleged to have committed the harassment. These investigations are a prelude to the employer taking action against the alleged harasser.

Two things, at least, flow from this. First, while the employer is looking at the potential wrong-doing of the alleged harassor, it is actually investigating a matter that it could itself be liable for under human rights law. This creates a significant conflict of interest, and a substantial temptation to find that while some wrongdoing may have occurred, it was not sexual harassment.  

Second, remedies which could flow if employer responsibility were being considered and acknowledged in an investigation will most likely not be on the table. This can include policy changes, training and even compensation to the complainant.

7. Disclosing vs. Reporting

Some sexual harassment policies make a distinction between disclosing sexual harassment and reporting it.  In such policies, disclosure alone may not lead to investigation of the allegation, or any other action by the employer.  Reporting in these policies involves making a “formal” written complaint.

In view of the employer’s obligation to investigate under health and safety law, it is unclear that it is open to an employer not to investigate once it is aware of the details of a complaint of sexual harassment, whether that information came to it by a “disclosure” or a “report”.  If the complainant does not want an investigation or has not yet decided, they might be better off taking their concerns to someone outside the employer’s organization to talk through them and get some advice about how to proceed. 

A key thing for complainants to consider is that making a report to an employer will likely involve putting allegations in writing and being interviewed about those allegations by an investigator, who may well not accept everything the complainant says at face value.  Since our legal system places a lot of emphasis on consistency to judge if someone is telling the truth, each retelling of a complaint gives rise to risks around inconsistency, which in turn can affect whether a complainant is believed in the investigation or in any other process. If a complainant is seriously considering a process outside the workplace, the complainant may not want to take the risk of telling what happened several times inside the workplace’s processes, and giving the employer’s investigator a chance to question them broadly and deeply on their allegations before any external process even starts. In human rights complaints, for example, employers do not have a chance to question a complainant before a hearing on the complaint.

8. Key Questions About Internal Investigations 

Before reporting sexual harassment to an employer, it is important for a  complainant to consider what outcome they are seeking, and the process that will be available to deal with any complaint that is made.  

In considering an investigation process, it is valuable to ask a number of questions at the outset.  These include:

a) What risk is the complainant facing in making a complaint?  Does the employer’s policy say that complainants will not be penalized for making complaints, or will not be penalized for making complaints in good faith, or does it provide no protection for making a complaint?

b) What protection does the policy create to prevent retaliation against the complainant?

c) What will happen while the complaint is being investigated.  Will there be supports for the complainant?  Will steps be taken to ensure there is no ongoing contact between the complainant and the respondent?  If someone is inconvenienced by these steps, for example required to go on leave, will it be the complainant or the respondent?

d) Why is the complainant making the complaint?  What do they hope to achieve or prevent?

e) Who within the employer’s organization will be involved and have knowledge of the complaint?  Human resources personnel?  Supervisors?  Upper management?  All of the Board?  Only part of the Board?

f) What rules of confidentiality apply to the investigation? Will the complainant retain the right to speak about their harassment experience as they may need or want to do?  Are there constraints on sharing the complaint with others? Are there constraints on sharing information obtained through the investigation process with others?

g) Who will investigate?  Will the investigator be an internal or external person?  How neutral are they?  How skilled are they? 

h) Is the complainant entitled to have a support person or advocate through the whole process?

i) Will the complainant have a chance and proper support to set out the complaint in detail in writing?

j) Will the respondent be given the complaint and an opportunity to respond in writing.  If so, will this be given to the complainant?

k) If there are multiple complainants, how will this be handled?  Will the complainants see the complaints of other complainants, or will only the respondent see everything?

l) Will relevant documents be identified on all sides and made part of the investigation?  If so, will both parties get to see them, or only the respondent?

m) Will there be interviews by the investigator? If so, what record will be kept of the interviews?  Who will see these records? In particular, will the complainant be provided a summary of the respondent’s replies to the complaint? Will the complainant see summaries of the comments of witnesses or other persons interviewed?

n) If the investigator is going to write a report, will the complainant and respondent see that report before it is finalized in order to correct any errors?

o) Once the report is complete, who will see it, both parties or just the respondent?

p) Once the report is complete, who will see it within the employer?

q) Who will be the decision-maker with respect to any consequences of the report?

r) What range of outcomes will be considered by the employer?  Will these outcomes include steps to prevent occurrences of sexual harassment in future in the workplace?  Will they include policy changes?

s) Who will be advised of any outcomes, just the respondent or the respondent and the complainant?

t) Is there any further mechanism for either party if they object to the investigation report or the outcomes?

u) Will supports and protections remain in place for the complainant in any event of the investigation, only if the investigation finds sexual harassment, or not in either case?

v) What will happen to the complaint file after the investigation?

w) Do any confidentiality rules change once an investigation is complete?

x) How long is the investigation likely to take?

The answers to these questions can help a complainant decide whether or not to wait for, participate in, and place faith in an investigation. 

The most significant issues seem to arise around disclosure of documents to the complainant, disclosure of replies to the complaint, disclosure of the report to the complainant, and disclosure of the investigation’s outcome to the complaint.  Complainants are often left in the dark for long periods after filing their complaint, and often receive poor or no updates on what has happened with their complaint. These issues arise because complainants are witnesses and not parties in investigations, and because investigations are not adjudications but really a way for the employers to figure out if and how they want to respond to sexual harassment complaints.

In relation to disclosure of the report and outcomes, a particular sticking point seems to be protection of privacy legislation restricting the sharing of employment information.  Exceptions exist permitting the sharing of information necessary for the health and safety of other employees. Arguably, the health and safety of complainants depends on knowing the outcome of their sexual harassment complaints. If reports and outcomes are to be shared with the complainant, this should be clearly spelled out in the policy. 

Complainants should request information about the process to be used, and employers should answer those questions fully before the process starts. Ideally, employers should have thought about these matters long before the complaint is ever made. Employer processes in relation to complaints can be damaging to complainants, and employers must make every effort to avoid this harm.

 9. Advocacy in Investigations

Where is advocacy best directed in investigations?

a) Ensuring the complaint is complete and accurate.

b) Identifying remedies or objectives for the complaint and investigation.

c) Reviewing, evaluating and clarifying the procedures established by the policy, and advocating for improvements in the process, if possible.  Determining if the investigation is a suitable, safe process.

d) Identifying and advocating for interim measures during the investigation.

e) Identifying what disclosure to seek.

f) Reviewing the response with the complainant as this is usually a painful part of the process.

g) Supporting the complainant during an investigative interview, including by attending the interview.

h) Reviewing report drafts or final versions with the complainant and reviewing responses if permitted.

i) Identifying and advocating for appropriate outcomes for the respondent and for the complainant after the investigation is complete.

Complainants need to give very careful consideration to participating in an investigation that is not safe, that carries risk for the complainant, or that will not provide proper disclosure throughout, including of the investigation report and outcomes.  Where an internal investigation process is not well structured for the complainant, an external process like a grievance or human rights complaint may well be better and produce more tangible results for the complainant.