Workplace Harassment: It's Never Okay

“Harassment is generally considered to be a pattern of behaviour that is deemed unacceptable or unwelcome,” explained Rudner. “However, one singular incident may also constitute harassment,  depending upon the details of the individual case.

“Harassment includes, but is not limited to, sexual harassment in the workplace. Generally, it’s a pattern of unwelcome conduct, and can cause psychological injury to the individual. Most policies try to define it through examples – but, of course, these examples will never be exhaustive because it’s nearly impossible to define harassment definitively.”

A good place to start when looking at HR’s role in mitigating abusive behaviour is the “duty to investigate.” Often overlooked, Rudner explains that it’s not just a “nice to have,” it’s a legal requirement. 

“It’s important for both employers and employees to understand the ‘duty to investigate,’” continued Rudner. “In Ontario, the Occupational Health and Safety Act has been amended to include a positive duty to investigate where there’s an allegation, or even a suspicion, of harassment or sexual harassment. Similar acts exist in other provinces. 

“So, if there’s a complaint, employers can’t decide against looking into it just because they think it doesn’t sound credible. That would be a breach of legislation.”

Every employer has a duty to create a safe working environment for its employees. As such, if an employer becomes aware of potential cases of harassment in its workplace, it has a duty to investigate. Failure to do so could even expose the company to additional liabilities. 

The landscape of harassment has changed – and the responsibilities of HR have accelerated. We’re no longer a pencil-pushing, personnel-based institution – HR is now the legal, and often ethical, hub of the organization. 

“Gone are the days when employers can bury their heads in the sand and pretend harassment doesn’t exist,” continued Rudner. “If there’s a complaint or even a legitimate suspicion, they have to look into it.” 

Having said that, Rudner pointed out that investigations can take on many forms. Sometimes, employers become anxious when they hear the term “investigation” – thinking it will take months and cost them thousands of dollars. 

“In actuality, the investigation just has to be fitting to the circumstances,” added Rudner. “This could mean simply interviewing the parties involved and preparing an email conclusion. It doesn’t have to be an extensive process – just an authentic one.”

And the role of HR since #MeToo? Well, as Rudner explained, the facts speak for themselves. 

“Around five years ago, I created a course called HR Law for HR Professionals. At that time, investigations were just a singular footnote on one topic,” he told HRD. “Now, in the current version of the course, investigations take up one entire day out of five. 

“In many cases, I encourage HR to think carefully about who the investigator will be in each case. It doesn’t have to be a lawyer, but I do encourage employers to allocate someone who’s already trained in conducting investigations.” 

Further, Rudner advised that it should be an individual who doesn’t have a conflict of interest, someone who doesn’t know the parties involved and will not prejudge the subject. 

It also needs to be someone who has sufficient time to spend on the investigation. 

“A lot of HR professionals I speak with are already overwhelmed with their regular workload. Asking them then to conduct a harassment investigation in a timely manner is not realistic,” concluded Rudner.

“HR should be working hand in hand with employment councils, which is my preferred role. I essentially play the quarterback here, guiding clients through the processes involved, looking over the (investigation) reports and advising the client of any further action that’s required.”

For more information on managing workplace harassment in Canada, download the complete guide Workplace Harassment: It’s Never Okay.