Workplace Harassment: Preventing and Responding to Complaints

Workplace Harassment: Preventing and Responding to Complaints

 

Naomi R. Rozenberg, Associate
Phone:  604-685-3911
Email: nrr@lmlaw.ca

 

 

The #MeToo movement has reached a tipping point. Allegations of harassment against executives, politicians, celebrities, teachers, coaches, police officers, airlines, firms and companies are piling up. Workplace harassment is often met with immediate dismissal (or voluntary resignation). A consequence of this cultural shift is that women (and men) are feeling empowered and supported to report an incident. As a result, employers should expect an increase of discrimination complaints, claims and lawsuits.

Human Rights Complaints

Employers have an obligation to create and maintain a harassment-free work environment. Failure to do so will often result in a human rights complaint. Inappropriate conduct by anyone in the workplace – a supervisor, superior, colleague or coworker – can result in a complaint. The Supreme Court of Canada recently confirmed that the BC Human Rights Code extends to protect employees from discrimination in the workplace, even if the offender works for a different employer. This broad interpretation of discrimination “regarding employment” will undoubtedly result in more claims and complaints. 

→ Remedies for Discrimination

If the claim for discrimination is successful, the human rights tribunal will order a remedy. This can include:

  • compensation for lost wages,
  • compensation for loss of benefits such as health, pension or employment insurance benefits,
  • compensation for injury to dignity, feelings and self-respect,
  • compensation for the loss of the right to be free from discrimination and victimization,
  • compensation for expenses,
  • reinstating an employee who was terminated, and
  • if the discrimination is part of a pattern or practice, an order that the employer take action or adopt a program to fix the discrimination.

→ Damages for Discrimination

The financial penalties for harassment and discrimination in the workplace can be significant. In a number of recent cases, tribunals have awarded damages for discrimination at record-setting amounts that far exceed what a court might award in a wrongful dismissal claim. ​

For example, in Kelly v. UBC, 2013 BCHRT 302, the BC Human Rights Tribunal awarded the medical school resident $75,000 in damages for injury to dignity. The BC Court of Appeal upheld the award, recognizing that there is no cap or limit on awards for injury to dignity, and the Tribunal has the discretion to order significant damages if it is warranted by the individual’s unique circumstances.

In O.P.T. v. Presteve Foods Ltd., the Ontario Human Rights Tribunal awarded an employee $150,000 in general damages for injury to dignity, feelings and self-respect. The Tribunal found that the respondent had engaged in a persistent pattern of sexual harassment in the workplace and that his “pattern of persistent and unwanted sexual solicitations and advances and sexual harassment … created a sexually poisoned work environment” in violation of the Ontario Human Rights Code.

Civil Lawsuits: Breach of Contract

Harassment and discrimination in the workplace can also result in a civil lawsuit and, in some cases, a class action.

In Lewis v. WestJet Airlines Ltd., 2017 BCSC 2327, a former flight attendant accused a pilot of sexual misconduct. Ms. Lewis filed a civil lawsuit, claiming WestJet violated its anti-harassment policies in its response to her complaint and then retaliated by reducing her hours before firing her for insubordination. Ms. Lewis also began a proposed class action, claiming multiple women had similar complaints.

WestJet applied to the BC Supreme Court to strike the class action lawsuit on the basis that the complaints should be brought before the Canadian Human Rights Tribunal, which is a comprehensive administrative scheme for the granting and enforcement of employee rights relating to discrimination. Ms. Lewis argued that the class action lawsuit does not seek to enforce any statutorily-conferred rights. Rather, the claim seeks damage for breach of the employment contract, since she and other flight attendants were denied the benefits of the anti-harassment policy. In December 2017, the BC Supreme Court dismissed WestJet’s application. The court reasoned that since the case deals with an alleged breach of contract, the court is an appropriate venue.

This case demonstrates that having an anti-harassment policy in place is only worthwhile if it is diligently followed. Failing to adhere to the policy might amount to breach of the employment contract.

Prevention, Policies and Procedures

Employers can take proactive, preventative steps to foster a harassment-free workplace and minimize the risk of a lawsuit or human rights complaint. These include:

  1.     Develop a policy statement which clearly states that bullying and harassment is unacceptable.

Provide a definition of bullying and harassment that include examples of the type of behaviour that is considered unacceptable, such as:

  • aggressive, intimidating, discriminatory or insulting language or gestures,
  • vandalizing personal property,
  • sabotaging someone’s work,
  • spreading malicious gossip or rumors, and
  • physical or verbal threats.

In addition, consider including examples of behaviour that does not constitute harassment, such as performance evaluations, workload changes, deadlines, layoffs, transfers, or discipline. As a starting point, the WorkSafeBC website has sample policy statements, among other resources.

An employment lawyer should review the draft policy statement to ensure the wording is clear and comprehensive.

  1.     Establish procedures for dealing with harassment incidents and complaints in the workplace.

The policy should explain:

  • the confidential procedure for reporting incidents,
  • the process and time frame for conducting an investigation,
  • the roles and responsibilities of employers, supervisors, workers, investigators, witnesses, and others in the investigation,
  • the expectation to cooperate with an investigator and provide details of acts of bullying or harassment they have experienced or witnessed,
  • interim measures to limit the potential for harassment or retaliation during the investigation,
  • the type of corrective action or consequences that might follow an investigation, including warnings, discipline, suspension or termination, and
  • record-keeping requirements.
  1.     Educate the workforce.

Inform all workers about the policies and make copies available. Provide courses and training on identifying, reporting and responding to harassment in the workplace. This might require the involvement of an external consulting service.

  1.     Implement the policies and procedures.

If a complaint is received, refer to the policies and follow the procedures that are in place. Respond to accusations in a prompt, discrete and objective manner. Implementing the policy will ensure the investigation is thorough, impartial, and confidential. Explain the expected timeline and overall process to the complainant, and the accused.

Investigate the allegations thoroughly and in a timely manner. Gather and record all of the evidence available, including emails, witness statements, and other records. Evaluate and assess all of the information and evidence, taken as a whole.

  1.     Resolve each complaint appropriately.

Once the investigation is complete, ensure the response is proportionate to the complaint and that the resolution will fully addresses the incident.

If the conduct might be grounds for terminating an employee, consult an employment lawyer first, because the conduct may not constitute “just cause” for dismissal.

  1.     Be cautious and diligent when hiring new employees.

Conduct reference and background checks and look for any red flags. Implement a 3-6 month probationary period for new hires. Near the end of the probation period, conduct a meaningful, substantive review of the employee’s performance, as well as his or her conduct and behaviour in the workplace. Interview other employees to get their impressions and observations about how the new hire behaves towards colleagues, clients, customers and superiors.

These strategies are designed to give workers confidence that the employer is committed to maintaining a safe and secure workplace environment. Following these guidelines will reduce the likelihood of a civil lawsuit and human rights complaint.

 

WHAT WE DO:  Lesperance Mendes provides practical advice and cost-effective legal services to employers regarding human rights complaints and wrongful dismissal actions. Our team regularly advises employers on taking proactive steps to avoid potential lawsuits and complaints.  For more information or to book an appointment, please Naomi Rozenberg at 604-685-3911 or nrr@lmlaw.ca

THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied on without independent legal advice.