What is harassment?

What is harassment?

Dr. Kelly Williams-Whitt, U Lethbridge professor of labour relations and human resources management, expert in disability management in the workplace, arbitrator, mediator, president of the Canadians Industrial Relations Association, asked us from the head of the table at a Workplace Fairness lunch.  20 blank faces looked back.  This was a well-informed and experienced group, taken aback at first by a speaker who threw the conversation right at them.

The hesitation was only momentary; the audience caught the ball and was rewarded with another question:

Can harassment exist without intention?

Well, now you want to know the answers, don’t you?

Before making decisions the ancients would go to Delphi to consult the oracle. Who is your oracle when it comes to harassment in the workplace?

Dr. Williams-Whitt wrote a case study (from the fictional Fort McMurray U) which was used in a mock arbitration performed in front of a live audience.  One arbitrator ruled yes, there was harassment in the fictional case; one ruled no.  Our audience, reading the same case study, threw back some questions of their own: Where is the line between what lawyers like to call inappropriate behaviour, and harassment?  It is the age old answer: it depends.  It may depend on

a. The context in which it occurred and the culture of the workplace
b. The nature and severity of the harassing behavior
c. Persistence in the face of the knowledge that that the behavior is unacceptable/unwelcome
d. The relationship between the parties, etc.

Would a reasonable person, confronted with the behaviour in question, feel uncomfortable or intimidated?  The law will always take it back to the reasonable person standard.  I also remind myself when confronted with a harassment allegation that this is the complainant’s truth, and both sides of the complaint deserve respect, consideration and fair process.

If a complaint is filed, what are the available avenues for resolution?

Dr. Williams-Whitt pointed to 3, and a half:

1 – Human Rights.  The purpose of the code of human rights is preventing discrimination whether intentional or not, and based on 13 protected grounds relating to personal characteristics of the individual or group (for example race, colour, physical/mental disability, sex, creed or religion, to name a few).   A claim must be related to one of these grounds to be filed in this venue.

Here is a link to a long list of practical resources from the Federal Treasury Board.  And to learn more about the Alberta Human Rights commission, visit here.

2— Collective Agreement.  In a unionized environment, a harassment complaint will be evaluated against language in the collective agreement and will go to resolution through channels defined by the collective agreement, usually culminating in arbitration.

3 – Occupational Health & Safety.  Now interestingly, as Dr. Williams-Whitt pointed out, there are not many investigations or cases under OHS legislation that deal with psychological safety.  Although, OHS legislation in Alberta (and other provinces) requires that employers provide a workplace that is both physically and psychologically safe.  OHS has historically dealt most frequently with workplace accidents or violence, and they have their hands full there.

Here is information about bullying as defined by the Canadian Centre for Occupational Health and Safety.  To read more about the voluntary Standards of Psychological Health and Safety in the workplace, go here.

And a half – court.  Not many employees will pursue their claim in court.

What can you do to be proactive in the workplace and minimize your risks?

Based on the conversation Friday, I have created a checklist for the organization.  Each item on this list deserves due attention.

  • Policies and procedures (comprehensive? current?)
  • Training (Adequate? Available? With follow-up?)
  • Risk assessment (What the psychological risk factors in your organization?)
  • Reporting systems (Maintaining privacy? Safe? With proper records? Accessible? Fair?)
  • Conflict resolution channels (Accessible? Fair? Cost effective? Just?)
  • Investigation expertise (Proper systems in place? Training?)

We wrapped up with a few comments about the role of investigation and the investigator.  I will summarize a few key points here:

  • The investigator’s role is to collect the data, not to make decisions
  • The investigator’s role is to distinguish fact from opinion
  • There are levels of investigation – it may be more appropriate at times to do an informal inquiry before escalating to a full investigation.
  • Privacy of those involved in the investigation is important, but confidentiality cannot be assured. Information from the investigation will be shared, but only with those who need to know about it to address the situation appropriately.

Did you know that the Workplace Fairness Assessment can help you to evaluate your conflict management system? It will address in detail the items from the checklist above.

AND further, if you are wondering if you have appropriate safe channels for employees to bring forward concerns, and have them addressed before they escalate, maybe it’s time to think about the Workplace Fairness Ombuds office?

The Ombudsman is

November is Workplace Fairness Ombuds-month.  Most of you are now aware that Michelle and I have been celebrating the ombudsman through several events and by circulating articles on the topic.

On November 15 we were pleased to be joined at our luncheon by two highly experienced Conflict Resolution professionalsDeborah Sword and Josie Stiles.  Both come with a slightly different perspective and a lively conversation ensued.  Deborah is the former Western conflict manager for the Centre for Values and Ethics at Parks Canada Agency, reporting to and supporting the Parks Canada Ombudsman, and Josie is the recently appointed Ombudsman with Baker Hughes Canada.  Questions came fast and furious.  Here are a few highlights.

Mosaico de Ventanas II - México 2008

The role of the ombudman office reflects the values, ethics and culture of the organization it serves.

What distinguishes the role of the ombudsman?  Both our presenters agreed that one aspect that distinguishes the Ombudsman role from others is that of oversight.  The Ombuds role offers the opportunity to converse with every person within an organization without exception.  Deborah referred to the oversight role as one which entails listening for patterns.  It is important in the Ombuds role to have the authority and the means to take a global snapshot of an organization, track and record trends, and draw conclusions from those trends.

A clearly defined mandate for the Ombudsman is crucial. Neutrality is a foundational principle of all Ombuds practices. This neutrality is reflected in being an advocate for fair process and not taking sides.

In classical Ombuds roles, where the function also includes investigating complaints, Ombuds will draw conclusions and make recommendations. There is a debate in Ombuds’ circles around the appropriateness of the Ombuds office doing investigations, as some people suggest the role slips into ‘taking a stand /side” and defending one’s recommendations, or positions and this may be seen as advocating.

Could you have an ombudsman on a project?  The reference was to multifaceted projects which may be stretched across multiple organizations and through multiple roles.  Certainly there was agreement that having a third party neutral to turn to for the project team could be very valuable. Could this person also serve the role to seek out patterns in the organization?  At Parks Canada in fact, almost all work is on a project basis.  This may not be possible for cross-organizational projects. 

How do you market the ombudsman office? You need to find a balance. There is a role and a place for the ombudsman to attend group gatherings and meetings to introduce the office and its resources. There can also be a mail-out, but it is crucial that direct communication about the ombudsman office needs to come from the top down, from the CEO or equivalent. Only then is there a chance to build trust with employees that the organization is on board to address concerns they raise.

What distinguishes the organizational (corporate) ombudsman from the classical ombuds? Our conversation highlighted the difference between Deborah’s role at Parks Canada and Josie’s at Baker Hughes. As an organizational ombudsman, Josie is bound by these four values: independence, neutrality, informality and confidentiality.  At Parks Canada, Deborah was bound by the values of respect, impartiality, engagement and excellence.  Informality and confidentiality distinguish these two roles.  The Parks Canada Ombuds also is the Sr. Integrity Officer with a mandate to make findings of wrongdoing after thorough investigation of any allegations.

So, where does accountability lie in the organizational context?  Josie described her roles as a complement to health and safety and HR functions which are more compliance oriented and need to be kept distinct. The complementary role may include tasks such as coaching, which empowers staff to take on their own behaviour, and own their own accountability. The informality and confidentiality are crucial for establishing effective and trusting coaching relationships. One goal of coaching is to help staff take accountability for their actions.

Is the ombudsman there to add value to an organization?  Is it possible to assess the ombudsman office using traditional cost-effectiveness metrics?  Deborah provided several examples of tasks she does which are not traditional conflict management tasks; the PCA Ombuds’ role includes functional leadership.  In fact, this gives the Parks’ Ombuds a unique perspective between the role of the Ombudsman and the conflict manager because the two roles exist in the same office and can hand files off to each other in a seamless transition as the situation requires. Does this increase the value of this role?

Some might argue that the Ombudsman, no matter how independent or impartial, is still a pawn of management, and as such a pawn is there to ensure cost-effectiveness.

If the Ombudsman works within an organization to enhance employee retention and engagement, and in so doing mitigates staff turnover, and fosters a more engaged workplace where people are more productive and more innovative then yes, I would say an Ombudsman adds value.

What do you think?