Harassment complaints part 1: Employers’ duties

In the first installment of a two-part series on harassment complaints, Toronto civil litigator Stephany Mandin discusses an employer’s duty to investigate.

Organizations without a robust system for investigating harassment complaints are exposing themselves to significant risk, says Toronto employment lawyer and civil litigator Stephany Mandin.

Mandin, principal of Mandin Law, has been involved in a spate of recent matters involving employers and educational institutions who failed to properly investigate or follow up on sexual assault or harassment allegations from workers or students.

She attributes the trend to a combination of cultural and legal shifts that have taken place over the last decade that have empowered victims and enhanced accountability for perpetrators.

“Sexual harassment has become more of a hot-button issue, particularly in the last couple of years with the advent of the #MeToo movement,” Mandin says. “Where historically, employees were afraid to come forward with allegations of harassment, we now have an environment that is a bit more accepting, and people are making complaints.”

At the same time, legislative developments in Ontario have forced employers to take the issue more seriously, starting with the passage of Bill 168 in 2010, which amended Ontario’s Occupational Health and Safety Act (OHSA) by introducing requirements for risk assessments and policies regarding workplace violence and harassment, she tells AdvocateDaily.com.

More recently, Bill 132 further amended the OHSA, mandating employers to conduct investigations into incidents of alleged workplace harassment.

The bill also explicitly expanded the definition of workplace harassment to include sexual harassment and provides provincial inspectors with the power to order an impartial investigation at the employer’s expense.

Similar changes have been enacted to the Canada Labour Code, which applies to federally regulated employers.

“This puts proactive obligations on employers, so it’s no longer sufficient to simply react to complaints as they come in,” says Mandin, who represents employers and employees at all levels of court.

And many organizations haven’t kept up with the pace of change, she adds, even if they appear to be in technical compliance with the new laws.

“It’s one thing to have great policies and procedures in place, but it all comes down to how they’re implemented. There’s no perfect or single solution because it depends on the size and scope of the organization,” says Mandin, who advises employers to seek counsel to ensure they’re not leaving themselves open to complaints.

“When in doubt, ask a professional,” she says. “It’s better to be on the right side of the law pre-emptively than to be dealing with problems further down the road.”

Mandin says minimum requirements are becoming clearer as a steady stream of case law emerges from the courts and the Human Rights Tribunal of Ontario.

“For example, an employer’s policy and process should ensure that complaints are taken seriously and acted on promptly, and that appropriate resources are deployed so that employees can access a viable complaint mechanism that is communicated and understood throughout the organization,” she says.

Individual organizations may wish to designate a trained person or department to receive internal harassment complaints, while others, including smaller employers where the appearance of neutrality is harder to maintain, often outsource the job to an external body, says Mandin.

“There should be regular training sessions to review policies and set out the complaints mechanism,” she says. “You also want to make sure the complaints process protects against reprisals or negative consequences for the complainant as a result of making their concerns known.”

But on the flip side, employers must be wary of forgetting the rights of the accused person in a harassment investigation.

“You have a challenging grey area for dealing with the two parties in the workplace — between receiving the complaint and reaching a final decision on the merits,” Mandin says. “While there is a growing sense that we must believe victims, the subject of the allegation is also entitled to a fulsome and proper investigation.

“Any interim measures should be done with a view to protecting the safety of the complainant and the integrity of the investigation, but with cognizance of the fact that no penalties are to be imposed until the outcome of the investigation.”

Mandin says the selection and conduct of the investigator is another potential pitfall for employers.

“It’s very important that the person should be independent, knowledgeable and objective. If the conclusions are ever challenged or used in the context of legal proceedings, you want to have a report that addresses the facts, evidence and interviews, and supports its findings in a way that’s commensurate with the applicable legislation,” she says.

“All that will assist in insulating the employer from a claim by either the complainant or the respondent.”

Mandin’s employer cheat sheet for investigating harassment includes the following advice:

  • Make sure policies and procedures are updated and in compliance with the applicable legislation and have them vetted by an expert.
  • Develop and advertise to employees a transparent complaints process with a neutral person as the first point of contact.
  • Ensure investigations are conducted in a professional manner, preferably by someone external to the organization, or at least with training in the area.
  • Deliver the results of an investigation in a timely fashion, and provide sufficient reasons.
  • Impose interim measures with a view to maintaining the status quo for both parties, where possible, but in particular to ensure the safety of the complainant and the integrity of the pending investigation.

Stay tuned for part two, where Mandin will discuss a complainant’s view of the process.