March 3, 2004 by Israel Foulon LLP
Question: We would like to institute a workplace harassment policy in our organization. What are some of the key considerations in implementing such a policy?
Answer: The Ontario Human Rights Code and the Canadian Human Rights Act recognize harassment as a violation of human rights. Accordingly employers have a responsibility to provide employees with a workplace free from harassment as a result of any of the enumerated grounds of discrimination — race, ancestry, colour, marital status, same-sex partnership status, family status and disability.
The courts have held there is a fundamental implied term of any employment relationship that employees will be treated with civility, decency, respect and dignity. Employers also have an obligation to prevent workplace bullying and other forms of general harassment in addition to preventing harassment due to any of the enumerated grounds of discrimination.
Workplace harassment policies provide a relatively quick and simple way of protecting employees from harassment. In some provinces, human rights legislation even goes so far as to specifically impose liability on employers for the acts of its employees. Proactive steps by an employer to deal with workplace harassment may have an impact on a court’s decision regarding the appropriate remedy to be awarded to a victim. It is advisable therefore, for employers to institute some form of workplace harassment policy.
Workplace harassment policies should, at a minimum, provide the following:
- an explanation of the underlying philosophy of the policy;
- some definition of the prohibited conduct;
- a warning on penalties that will be invoked for a violation of the policy;
- a method by which employees can raise issues of harassment in either a formal or informal manner;
- a procedural guideline for filing a complaint; and
- an outline of what might occur once a complaint has been filed.
Designing and instituting the policy is only the first step for employers. Once a workplace harassment policy is in place, the employer must ensure employees are knowledgeable about it. Employers should distribute the policy to all employees, and have it posted prominently in the workplace. It may also be necessary to provide an in-house training awareness program to ensure all employees are fully knowledgeable about the policy.
Supervisors and managers must also be knowledgeable about the policy. They are expected to be able to recognise and control the harassment and to implement the policy. Most importantly, these individuals must be informed of how to proceed if an incident of harassment occurs. If a complaint is made, managers and supervisors should be advised to:
- respond to the complaint in a timely fashion;
- measure the reported behaviour against the harassment policy and determine whether an investigation is warranted;
- if merited, immediately select an independent and experienced investigator; and
- ensure that the investigator meets with the complainant and the alleged harassor to conduct a thorough, timely and confidential investigation.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today