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?