You are an employer that has just received a harassment complaint from an employee. The complaint is against a valued employee who you do not want to lose. But you are also worried that you will be faced with an expensive human rights complaint or lawsuit. What do you do?
Below I discuss two decisions of the Human Rights Tribunal of Ontario. In Szyluk, the employer failed to properly investigate and respond to harassment allegations. In Shreve, the employer complied with its legal duties to investigate and respond.
By comparing and contrasting the approach taken by each employer, we can derive best practices when responding to harassment complaints.
Szyluk v. United Food Commercial Workers, Local 1000A (June 23, 2009)
Mr. Gure, a union steward made derogatory remarks about native employees at a union meeting. Ms. Szyluk, another union steward immediately left the room and complained to the union. The union discussed the matter with Mr. Gure, who later apologized for his remarks and refrained from making similar remarks thereafter.
Ms. Szyluk was not satisfied. She escalated her complaint to the union vice president, and advised that she had taped the remarks. The union conducted an investigation, and concluded that no further remedial action was necessary because the remarks were made in a light-hearted manner, were not intended to cause offence, and Mr. Gure had already apologized and refrained from making further remarks.
The union had a harassment policy which prohibited discrimination or harassment on the basis of grounds protected under the Human Rights Code. The policy also provided that complaints would be investigated, those involved would be interviewed, and a resolution sought. However, the union did not require all stewards to undergo training on the Code or the policy.
Ms. Szyluk filed a human rights application at the Human Rights Tribunal of Ontario. The Tribunal awarded damages to Ms. Szyluk on the basis that the union’s failure to sufficiently investigate and resolve the complaint, and failure to train staff and union stewards on the Code and the policy, constituted unlawful discrimination under the Code. The Tribunal also ordered the union to train staff and stewards on the Code and the policy.
Why the investigation and resolution were insufficient?
The Tribunal said it would consider the following when deciding if a response to harassment allegations was sufficient: (i) The response must be prompt; (ii) There must be corporate awareness that the conduct complained of is prohibited; (iii) The matter must be dealt with seriously; (iv) There must be a complaint mechanism in place; (v) The respondent must act so as to provide a healthy environment; and (vi) The respondent must communicate its actions to the complainant.
The Tribunal found that the union failed to meet condition (i) when it waited until Ms. Szyluk produced a tape recording before initiating an investigation. The union failed to meet conditions (ii) and (iii) because it concluded that the comments were light-hearted and acceptable, and because the union had not required its staff and stewards to receive training on the Code and the policy. Finally, the union failed to meet condition (v) because it dismissed the complaint as resolved without implementing further training or other measures to provide a healthy environment.
Shreve v. Windsor (City) (February 21, 2013)
Mr. Shreve had made a number of informal and formal complaints to the City of Windsor’s management, and had even gone as far as to contact senior public officials like the mayor and by contacting the Ontario Human Rights Commission.
He filed a human rights complaint because he believed that those prior investigations and complaints had yielded either non-committal or ineffective responses. Mr. Shreve alleged that there was a poisoned work environment that either the City created or condoned through inaction. He asserted several instances during which he endured severe, pervasive and offensive language based on race, colour and ethnic origin at the hands of his co-workers, and that management’s response was insufficient.
In the first of three incidents, Mr. Shreve complained that a co-worker recounted a comedy skit by Dave Chappelle, which among other things, included reference to the word “Nigger”. The employer responded by immediately posting a notice reminding employees that such language and content was unacceptable in the workplace, and contrary to the City’s diversity policies. That notice was also sent to employees with their paystubs.
The City then had employees undergo diversity training, which is where the second alleged incident occurred. While discussing the difference between acceptable conduct in and outside the workplace, the trainer gave the example that a co-worker could be a member of the KKK in their free time, provided they did not discuss their personal views in the workplace.
In the third incident giving rise to the complaint, Mr. Shreve alleged that a co-worker had used the word “Nigger” when discussing Detroit Mayor Kwame Kilpatrick. That employee had been suspended for five days without pay, management had spoken to the employees involved and that further training had been requested for the employees in that location.
Why the investigation and resolution were sufficient?
The Tribunal found: (i) That the City Had a comprehensive policy in place that was disseminated widely in the workplace; (ii) That when complaints were raised, investigations commenced promptly and persons concerned were interviewed; (iii) That discipline was imposed when appropriate; and (iv) That retraining on the workplace diversity and inclusion policies took place within a reasonable amount of time.
In other words, the City in Shreve took every step that the UFCW failed to take in Szyluk.
Lessons for employers
To minimize liability, and to promote and ensure compliance with the Code generally, employers should:
- Investigate complaints promptly after they are made;
- ensure that all employees are aware of relevant human rights and harassment policies;
- treat all complaints seriously and investigate them pursuant to the relevant policies; and
- have a procedure in place that:
- advises employees to whom they can make complaints;
- includes an investigation mechanism;
- includes a process for deciding how complaints will be resolved; and
- advises the complainant what action has been taken to resolve the complaint.
Harassment complaints can happen in the best of workplaces. You should not delay your response in hopes that the situation will resolve itself. This will usually only heighten the risk of legal liability. A prompt and decisive response to a complaint will often help defuse the situation and reduce whatever legal risks may be present. When faced with a harassment complaint, prompt, effective steps to investigate and respond can be the difference between a complaint handled internally and one that leads to protracted litigation.
This blog was originally posted by Stringer LLP on First Reference Talks, March 26.