Human Resources 101

INTRODUCTION

What is “sexual harassment?”  Can any comment of a sexual nature in the workplace be considered “harassment?”  Does a remark about a fellow employee’s clothing or perfume cross the line of acceptable behaviour?  Are different rules of conduct applied to co-workers?  Managers?  Customers?  And, what if you are the person accused of inappropriate conduct in the workplace?

Among employers and employees there is an increasing awareness that sexual harassment can be a destructive and counterproductive force in the working environment.  Indeed organizations have a legal obligation to provide employees with a workplace that is free of sexual harassment and many employees have become quite aware they have a legal right to be protected.  The difficulty, sometimes, knows where to draw the line.

SOME EXAMPLES

Here are some examples of typical workplace situations involving alleged harassment.  You decide if each one is actually sexual harassment.

Example #1
Two office workers have worked closely together for six months.  During that time, the male worker has asked his female colleague out on a date on several occasions.  Each time, she has politely refused and has told her workmate she isn’t interested in pursuing a relationship.  Is the male employee harassing his female colleague?

Examples #2
A manger receives a racy, nude male calendar from a supplier.  She lets fellow workers know she likes what she sees and puts it up in a prominent spot in the office.  While some employees don’t mind, a few are uncomfortable.  Is this sexual harassment?

Harassment or Not?

Chances are, you may have a different reaction to each of these situations.  Indeed, the first important aspect of sexual harassment to understand is that we all bring different views and attitudes to the issue of sexual harassment.  A second important point is that there are no instant answers to any of these situations.  Since we all have different views on what constitutes harassment, we have to look very closely at who is involved and what’s tolerated in the work environment itself.  Another important factor these days is the multicultural society.

That said, each of the above examples can be judged on the surface.  The first examples involve the “persistent employee.”  The repetitive asking for a date is definitely harassment.  The female employee has made it abundantly clear she is not interested in dating and the persistence of the male worker has gone beyond what should be permitted.

The second example involves the racy calendar.  This is a very common cause of friction in workplaces and not only includes pictures of scantily clad models, but can also include sexually offensive cartoons or written phrases.  When fellow employees make it known they find such works offensive and nothing is done about it, the law is then concerned about what is called a “poisoned” environment where sexual harassment may be an unspoken, yet underlying, aspect of the workplace.

What is Sexual Harassment?

The above examples merely scratch the surface of the difficulties in defining sexual harassment.  For example, does sexual harassment always involve verbal comments?  Does your job have to be on the line to justify a complaint?  Does sexual harassment only involve heterosexuals?

The typical legal definition of sexual harassment is that it is:

“ A course of comment or conduct that is known our ought reasonably to be known to be unwelcome.”

Sexual harassment can be verbal, written or even gestures.  It does not have to involve a threat of job loss or a promotion in return for sexual favours.  Most cases involve men harassing women, but can also involve men harassing men or women harassing men or other women.

Workplace sexual harassment can also happen outside an organization’s office or buildings.  It includes any place where the business of the employer is conducted.  So, harassment could even involve conduct that happens at a convention or the worksite of a client or customer.  Indeed, as will be discussed later, an employer can be held responsible for the harassing behaviour of outside suppliers or customers.

Sexual harassment comes in many forms.  Tribunals have, however, generally agreed that certain behaviour can be considered to be sexual harassment.  The list typically includes:

* Unwelcome sexual innuendoes;
* Unwelcome sexual advances;
* Inappropriate body contact;
* Requests for sexual favours;
* Sexual joking;
* Inappropriate language;
* Leering;
* Displays of exploitative material, such as racy calendars; and
* Comments about a person’s body size, shape, makeup or smell.

At first glance it would seem that the threat of sexual harassment allegations might put an end to anything other than work-related conversations.  In many workplaces, for instance, jokes of a sexual nature are common.  Does this mean we can’t talk about anything other than work in the workplace?

The answer is no.  Remember, harassment is conduct or comments that are “known or ought reasonably to be known” to be unwelcome among those in that specific workplace.  A one-off remark or unintended incident isn’t usually enough to justify a complaint of harassment.  In today’s grey zones, such as jokes of a sexual nature, it’s important for employees to let it be known if they don’t like this behaviour before they go off complaining of sexual harassment.  Once they draw the line, other workers then have to adapt.

It’s also important to be aware that comments or conduct do not have to be directed against a specific individual or intended to offend.  In law, the so-called “poisoned workplace: doctrine says that certain types of conduct, such as swearing, sexually explicit language or pin-up calendars on the wall, may make the workplace unpleasant or uncomfortable for some people.  Even though the objectionable conduct isn’t aimed at specific individuals, it “poisons” their ability to work comfortably at their job.

Who is responsible for monitoring the workplace?  The law says everyone is responsible for keeping the workplace safe from harassment.  For example, an employee who witnesses an act of sexual harassment and does nothing about it can be found liable for damages.  That said, the clearest obligation is on the employer to act responsible and keep the workplace harassment free.

Dealing With The Sexual Harassment Complaint

What should a person do if they believe they are being subjected to inappropriate comments or conduct?  The law recognizes there is a subjective element to harassment and some people may be more sensitive to certain comments or conduct than others.

That is why it is important for employers and employees to first consider whether the incident is isolated and might be resolved by speaking to the offender about his or her behaviour.  If a person is comfortable with it, th3e first thing he or she should do is clearly communicate to the other person that the conduct or comments are inappropriate and unwelcome.  Sometimes, the problem may be resolved at that stage.

That may be easier said than done in some cases.  For example, an employee is not usually comfortable telling a superior that he or she is being offensive.  Or, the offensive behaviour may continue despite earlier warnings.  Either way, it may be necessary to lodge a formal complaint with an appropriate supervisor or manager.  The intervention of a third person, especially a superior, may be enough to put a stop to the offensive conduct.

When lodging a formal complaint, it is important to document the incidents by keeping notes.  A complainant should write down this information:

* The nature of the offensive comments or conduct;
* The date and time of each occurrence;
* The names of any witnesses;
* The context in which the incidents occurred; and
* Any feelings or types of distress felt or experienced because of the comments.

In companies with established harassment policies, a specific manager, such as the head of human resources, may be identified as the one to be contacted about such complaints.  In workplaces with collective agreements, a union steward may have to be involved.

Once a written complaint has been received, an employer has a legal obligation to conduct an investigation.  Typically, a member of management, such as a representative of the human resources department, will then conduct an investigation.

Depending on the nature of the complaint, any number of people may be interviewed.  If there were witnesses, they will likely be interviewed.  If there were witnesses, they will likely be interviewed.  Most importantly, the organization must interview both the person filing the complaint and the person against whom the allegations have been made.

Confidentiality is an important part of the investigation process for both the complainant and individual accused.  It is also important for the day-to-day operations of the organization that everyone involved maintain confidentiality regarding the complaint itself and the information which may be provided by witnesses.

A complainant should be aware, however, that all information given to the investigator may have to be passed on to the individual accused.  That person is entitled to know about each allegation and is entitled to respond.

Since allegations of harassment can make for an even more uncomfortable working atmosphere, the speed and timeliness of the investigation is also important.  An investigation and a decision as to the merits of the complaint should be completed within about two weeks of the complaint being received.  Obviously, though, this will depend on the number of witnesses who have to be interviewed.

The decision should be communicated to both the complainant and the accused, but there is no requirement to give either a copy of the investigation’s report.

What Happens After The Investigation?

Many workplaces these days have a widely-publicized “zero tolerance” policy for harassment.  Employees must understand, though, that zero tolerance does not necessarily mean immediate dismissal of offenders.  Properly applied, a policy of zero tolerance means an organization will not permit any complaint of harassment to go uninvestigated.  In fact, dismissal of a harasser is not always the best response to sexual harassment.  Most complainants simply want the offensive behaviour to stop and everyone to get back to work.

If a complaint has merit, then corrective action should be taken immediately and detailed documentation should be a part of that employee’s file.  Organizations have a wide range of options for corrective action, dependent on a number of factors, such as:

* The nature of the conduct;
* Frequency of the conduct;
* The position of the complainant and the accused;
* Length of service of the harasser; and
* The nature of the workplace.

In many cases, the organization will have to take care to balance the interests of both the complainant and the harasser.  An employer must satisfy two aims.  One is to send a message that sexual harassment will not be tolerated.  The employer will also want to enhance the working relationship among employees and ensure the workplace is not disrupted.  The options for corrective action include:

* A formal apology;
* Counselling the harasser about inappropriate behaviour;
* Mandatory enrolment in an Employee Assistance Program;
* A written warning;
* Transfer of the harasser or the complainant depending on the wishes of the complainant and the employer;
* A change in the managerial reporting relationship;
* Deferral of the harasser’s promotion or salary increase;
* Suspension of the harasser for an appropriate period of time; or
* Termination of the employment of the harasser.

You may remember that employers are obligated to protect employees from harassment not only onsite, but even when outside the organization.  Take the case of a harassing employee of a customer or supplier.  What corrective action can a complainant’s employer take?

While the complainant’s employer does not have any authority to impose discipline on these individuals, corrective action may involve contacting a supervisor or owner of the other organization.  As well, an employer may need to consider transferring the complainant away from work involving contact with this outside offender.

Regardless of the outcome, it is important for complainants to know they are protected from retaliation.

The false Complaint

An organization must take care to ensure the investigation and handling of a complaint is fair and it is worth pointing out that employees who wish to file a complaint not do so recklessly.

If an investigator determines the complaint has no  merit, even though it may have been made in good faith, the organization should close the file and no documentation should be placed in either employee’s file.

What, though, about the intentionally false complaint?  Filing a complaint of sexual harassment is a very serious action, which can have a major impact on both the accused and the organization.  A complaint must be made in good faith and with the firm belief the allegations are true.

An unfounded complaint has the potential to undermine the integrity of the organization’s policy on harassment prevention.  It can also cause irreparable harm to the accused and disrupt the workplace.  If an investigation were to find a complaint was frivolous and made in bad faith without an honest belief in its merits, then an organization would be well advised to discipline the complainant.

Conclusion

Keeping sexual harassment out of the workplace calls for a heightened level of communication and understanding between men and women.  A clear policy on sexual harassment can be an effective tool for identifying issues and increasing sensitivity between individuals.  A good policy is also an effective way to resolve disputes and misunderstandings.

That, however, is only one step toward a better understanding of sexual harassment.  What is important is for employees and their employer to openly and candidly discuss what is appropriate behaviour in their own workplace.  Only then will everyone have a clear understanding of where the line has been drawn.

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