Are your sexual harassment and harassment policies proactive or reactive?

December 1, 2014 Michele Glassford Employee Relations, Health and Safety, HR Policies and Procedures, Human Resources, Human Rights, Penalties and Fines, Privacy and Security, Training and Development, Union Relations

While at the First Reference Conference one year, an interesting conversation arose among attendees at my lunch table, where more than one complained that her workplace refused to implement an anti-bullying policy (as was required under the Ontario Occupational Health and Safety Act), apparently because doing so would open the floodgates (as the HR Manager was the alleged bully). Last month I told you about the workplace where harassment was so prevalent that the employer was deemed to have created a “poisoned work environment”. This month I have heard about a workplace (with overnight staff) in which male staff “enjoy” porn during shift in the presence of female staff. There have also been complaints and stories of sexual harassment and assault on Parliament Hill, the CBC, the TTC, the NFL, university campuses, etc., etc. etc., – the list seems to be never-ending and for women, and hopefully, for most men, is infuriating.

The “Ghomeshi effect”, and all of the media coverage noted above, has prompted my women friends and colleagues to share their stories of harassment, assault or overt sex discrimination in the workplace (and they all have them!).

The media coverage of so many women’s experiences has forced a number of challenges for employers into the limelight, namely, off-duty conduct, sexual harassment in the workplace, a complainant’s duty to report, and safe versus poisoned work environments, to name a few. None of these are easy for employers to deal with and no employment policy alone will prevent such issues without an ideological and practical commitment to equality in the workplace. Managing such issues is an ongoing responsibility requiring employers’ ongoing diligent attention and response.

Employers, of course, have legal obligations including prohibitions against discrimination and harassment on the basis of any prohibited ground in human rights legislation, and more recent provisions in most provinces requiring employers to implement policies and programs dealing with workplace harassment, bullying and/or violence as part of occupational health and safety. Most employers have policies and procedures which deal with such complaints reactively; but even the best such policy and procedure will only be effective if complainants are comfortable coming forward, and still only deals with an event after the fact, after the damage has been done, and whatever the outcome, with very little ability to control how the complainant is treated by other employees after the fact.

In order to prevent harassment and sexual harassment, employers must create workplaces of equality and respect, not just respond to reported incidents. That being said, employers must create an environment in which employees will feel safe reporting incidents, and must seriously investigate and respond.

So, evaluate how your workplace deals with or would deal with any of the following behaviours:

• racism, sexism, or racist and sexist jokes
• viewing pornography at the workplace
• employees who publicly express hateful sentiments (even if off-duty)
• employees who engage in hateful or violent off-duty conduct, such as domestic abuse, gay bashing, distribution of anti-immigrant flyers, etc.

Employers should also consider implementing an anonymous workplace survey to determine how employees perceive the workplace, whether they feel confident that workplace procedures would adequately prevent or address harassing behaviours, and to gauge whether employees have been reluctant to report any previous incidents. Be sure to publish and distribute the results with concrete steps the employer will take to address issues raised.

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Michele Glassford

President and Managing Editor at DRH and Lawyer at MacKinnon Law Associates

Michele Glassford, is a lawyer, researcher and policy analyst with a background in employment and labour law.In addition to a part-time law practice in Stoney Creek, Ontario, Michele has worked in the field of labour adjustment for the Health Sector Training and Adjustment Program and has been a Researcher for the Canadian Broadcasting Corporation. Michele also holds the position of President and Managing Editor at D.R. Hancocks & Associates Inc., author of the Human Resources PolicyPros. Read more

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anti-bullying policy, discrimination, employment law, Ghomeshi effect, harassment, occupational health and safety act, off-duty conduct, poisoned work environments, policies and procedures, prohibited ground in human rights legislation, racism, sex discrimination in the workplace, sexism, sexual harassment

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