POLICIES AND PROCEDURES FOR
PREVENTING SEXUAL HARASSMENT
IN THE WORKPLACE
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A guide for employers and employees
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Human Rights Commission
Province of Newfoundland and Labrador
INDEX
- Interviewing the Alleged Offender
- Interviewing Witnesses and Further Investigation
Contacting the Human Rights Commission
Human Rights Legislation has its grounding in the Universal Declaration of Human Rights which was ratified on December 10, 1948. The Declaration sets out a list of rights which ratifying countries strive to achieve for their citizens. Canada was a signatory to the Universal Declaration and in the early 1960's human rights legislation throughout the country started to emerge to meet Canada
=s international commitments. In Newfoundland, the Human Rights Code was proclaimed law on September 1, 1971. That legislation has been amended several times since to improve protections offered to the citizens of this province, including an amendment to prohibit harassment and sexual solicitation in 1983.
In 1987, the Supreme Court of Canada in Robichaud v. Treasury Board ruled that employers have a responsibility to ensure their employees do not experience sexual harassment in the workplace. Employers may reduce their liability if they can show that they did everything possible to prevent the inappropriate behaviour, or to alleviate its effects once the offensive behaviour has occurred. This strong message from the Supreme Court of Canada has prompted employers to implement policies within the workplace to educate employees about harassment.
This guide is intended as a tool to assist employers and employees as they work together to promote a safe working environment which shows respect for each individual employee.
Sexual harassment is unwanted and unwelcomed behaviour of a sexual nature. It may include touching a person in a sexual way; commenting about one
=s body; asking questions about a person=s sexual relationships; telling sexual jokes; or displaying posters or other offensive materials of a sexual nature.
The Human Rights Code for the province of Newfoundland and Labrador has two sections covering sexual harassment:
Section 12 prohibits harassment on the basis of sex ;and
Section 13 prohibits sexual solicitation by a person in a position of authority.
Harass means to engage in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
While there may be room for debate as to whether a comment is reasonable or not, the safest practice for all concerned would be to avoid making the comment if there is any doubt. This may prevent a lot of grief as the costs to all parties when harassment occurs may be substantial.
In Newfoundland and Labrador in 1998 two employers paid $30,000.00 each in general damages to settle sexual harassment complaints. Employers also incur considerable costs for legal representation when sexual harassment is prevalent in the workplace. In addition to financial costs, sexual harassment can create high levels of stress and anxiety for the victim and the perpetrator which result in deteriorated job performance, absenteeism, turnover in staff, etc.
WHAT IS NOT SEXUAL HARASSMENT?
- an occasional compliment or remark;
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personality differences between people;-
good natured jokes and jesting where both parties find the conduct acceptable;-
office romance and flirtation when both parties enter into a voluntary relationship; - normal exercise of supervisory responsibilities including discipline or counselling.
Develop policy-
- Develop complaint procedure
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Identify and consult with Resources- Develop and conduct Training Sessions
This example of an anti-harassment policy is intended as a guide to assist employers in developing a policy appropriate for the workplace.
If the employees are unionized, it is suggested that the employer have the union participate in the development of the policy.
Sexual Harassment Policy for ABC Limited
This policy confirms the commitment of ABC Limited to promote a safe and comfortable workplace for all employees which is free from any form of sexual harassment.
The Human Rights Code for the province of Newfoundland and Labrador prohibits harassment and sexual solicitation in the workplace. ABC Limited is committed to operate within the provisions of the law and harassment will not be tolerated in any form. Any acts of harassment will result in disciplinary actions and ABC Limited will investigate all allegations of inappropriate comments or conduct promptly and fairly.
All managers of ABC Limited have a responsibility to stop harassment. If a manager becomes aware of harassment anywhere within the company, that manager must take immediate action to eradicate the problem whether or not a complaint has been made.
Harassment may be identified as any behaviour that embarrasses or humiliates a person and that a reasonable person should have known to be unwelcome. It includes offensive comments related to sex or conduct, such as, touching or displays of inappropriate materials, such as, posters of a sexual nature.
Harassment may occur in the workplace itself or it may occur outside of the workplace in a situation that is in some way connected to work. This could include off-site conferences, delivery trips or the annual Christmas party.
A consensual romantic relationship entered into by mutual agreement would not be sexual harassment. However, if one employee ends the relationship and the other person persists in trying to continue the relationship, then this is harassment. Also, office bantering back and forth where everyone involved is in agreement is not harassment. However, if one person enters the group and is uncomfortable with this exchange and the others should have known the person was uncomfortable, then the banter becomes harassment.
Employees are encouraged to speak up if someone behaves in a way that offends, humiliates or degrades them. Tell the person responsible the behaviour is inappropriate. If the behaviour continues report the matter to a manager or, where appropriate, file a formal complaint. Also, employees should offer support to a co-worker where you observe harassment. Depending on the circumstances, you may talk with either of the parties involved or talk directly to a manager of ABC Limited. Further, all employees have a responsibility to promote a safe work environment by co-operating in the investigation of the harassment complaint.
Employees should record events of harassment in writing and by talking with a trusted friend. The records should document the nature of the offensive behaviour, the date it happened, where it happened, who else was present and may have observed the behaviour, how you responded, and how you felt. If you write a letter to the person or persons responsible, date the letter and keep a copy.
All managers at ABC Limited are responsible for enforcing company policy on harassment and all managers have been appropriately trained to mediate incidents of harassment. Where appropriate, an employee may request a manager to intervene by mediation. Alternatively, where the perpetrator rejects mediation an employee may file a formal written complaint by contacting the Director of Human Resources.
The Director of Human Resources is the person designated within ABC Limited to investigate formal complaints of harassment and to follow through on appropriate disciplinary action which may include dismissal depending on the seriousness of the harassment. ABC Limited may also deem it appropriate to retain an outside consultant.
Records of substantiated harassment complaints will be placed on the employee
=s file and the parties will be advised of the outcome of the investigation and of any action taken in the matter.
Retaliation against a person who has filed a complaint, or who has assisted in the investigation of a complaint, will not be tolerated in any form and will result in serious disciplinary action. A person who has filed a complaint with the Director of Human Resources at ABC Limited and encounters retaliation should inform the Director immediately.
Employees are encouraged to keep the information confidential to prevent a poisoned work environment. Also, nothing in this policy of ABC Limited would prevent any employee from filing a complaint with the Human Rights Commission. Complaints to the Commission must be made within 6 months of the event.
When formulating a policy on harassment for your workplace, it is suggested that the policy include the following information:
- Commitment of Company to address harassment in the workplace;
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Definition of harassment;-
Responsibilities of Managers and Employees;-
Disciplinary Action to be taken;-
Where to file the internal formal complaint;-
Feedback to be provided to the parties;-
Time frame to contact the Human Rights Commission.
Developing an internal policy and procedure for dealing with harassment complaints will not be adequate to remove liability where harassment occurs. The employer must also ensure that employees and managers alike are aware of the policy and procedures.
Employers can create awareness by:
- circulating the policy to all employees;
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offering seminars on the topic of harassment;-
training managers to react appropriately to incidents of harassment;-
training the designated investigator in the investigation and resolution of harassment complaints.
Filing the Complaint with the Company Investigator
The following are guidelines intended to assist employers in investigating and resolving complaints internally. Employers are reminded to conduct an impartial investigation and consider the rights of the alleged harasser as well as the alleged victim, until harassment has been established. It may be advisable for the employer to seek legal advice before taking disciplinary action. Employers may face civil action for wrongful dismissal where an employee has been terminated for harassment and the employer cannot verify that the harassment took place.
Where mediation fails or where mediation is inappropriate, a formal complaint may be made, in writing, to the Director of Human Resources for ABC Limited. The formal complaint will include the following information:
=s name and position- complainant
- the name and position of the alleged harasser
- the details of what happened including dates, times, locations, etc.
- the signature of the complainant and the date signed
The Director of Human Resources will record on a separate sheet the names of any potential witnesses or other victims. This information will not be shared with the Respondent at this stage of the process. The Director of Human Resources will also obtain from the complainant suggestions on how the matter can be satisfactorily resolved.
Carrying Out the Investigation
The Director of Human Resources will meet with the Respondent named in the complaint. The Respondent will be advised that the purpose of the meeting is to discuss the harassment complaint and that the Respondent may have a witness attend the meeting. A copy of the written complaint form will be given to the Respondent during this meeting. Generally, the person would want to respond to the allegations immediately. The response is documented as a statement by the Director of Human Resources who will permit the Respondent to read and sign the written account of the events from the Respondent
=s perspective. That written record should include any witnesses the Respondent thinks should be interviewed. Occasionally, a Respondent may request time to gather his/her thoughts and recollections before responding. If this happens, the Respondent will be given two days for this purpose. The Respondent may present the Director of Human Resources with a written reply at the end of the two days or arrange a second meeting, whereby, the Director of Human Resources will record the Respondent=s account of events for signature.
It may be that the Respondent has offended, humiliated or degraded the complainant without intending to. Where this is the case, the matter may be resolved at this stage with an apology and with a commitment by the Respondent to change the offending behaviour. Where there is admission to serious sexual harassment, disciplinary action and/or training may be appropriate at this time. Also, ABC Limited will ensure that any lost benefits to the complainant are restored.
If the offensive behaviour is denied by the Respondent, the Director of Human Resources will proceed with the investigation by interviewing witnesses and documenting their information, in writing, for signature. A written report is prepared by the Director of Human Resources and the report is shared with the parties who will be given an opportunity to respond, in writing, within two days of receipt of the report. At that time, the Director of Human Resources will outline the course of action to be taken in the matter. Depending on the seriousness of the harassment, disciplinary action may include suspension, transfer, demotion or termination for the Respondent. In most cases, where the harasser is not terminated he/she will be required to attend counselling or anti-harassment training sessions.
ABC Limited will take reasonable steps to remedy the effects of harassment encountered by the complainant. The remedy may include an oral or written apology; compensation for lost benefits and wages; training and any promotion that had been denied; and removal from the personnel file any records placed there because of the harassment.
The person investigating a complaint of sexual harassment should be recognized as being fair, impartial and independent of the parties to the complaint. The person should be knowledgeable in interviewing techniques and about sexual harassment.
The complaint process should be explained to the parties during the first contact and the person making the complaint should be told who will make the final decision in the matter. Anyone making a complaint should also be told that he or she could file a complaint with the Human Rights Commission, noting the 6 month time frame in which to file the complaint.
The investigator should stress that questioning does not mean that the person complaining is not believed, but is intended to establish independently that a complaint has substance. The complainant should first be asked to give a summary of the complaint. Specific questions are best left until a general picture has been formed. It is preferable to record the complaint chronologically.
Conduct the interview by asking open, not leading, questions. Open questions begin with who, when, what, where and how. Closed questions may suggest expected answers. For example:
| ASK | DO NOT ASK | |
| Q | Explain what happened. | Did he touch you? |
| A | He touched me. | Yes. |
| Q | Where did he touch you? | Did he touch your breast? |
| A | He touched me on my breast. | Yes. |
The person investigating the complaint should record the following information:
- the alleged offender=s name and position or other means of identification;
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whether the person who has complained works with the alleged offender or encounters him or her in the course of work. For example, is the alleged offender a co-worker or a customer; - the times, dates and location of each incident and the names of possible witnesses;-
the details of each alleged incident;- how the complainant reacted and the reason for that reaction, ensuring that questions are asked in a neutral way, with no blame being directed at the person making the complaint for failing to indicate that the behaviour was unwelcome;
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how the complainant felt immediately after the incident and later;-
whether the complainant told anyone about the incident and, if so, what was said, when, and to whom. If nothing was said, the person should be asked why not, with no conclusions drawn from any failure to report;- whether any written records were made. For example, journal notes, letters, e-mail and if there were records made are they available now;
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whether someone else has allegedly been harassed by the same person. The complainant may have seen evidence of this, or been told about it by others;-
whether the harassment has had any effect on work performance, morale, or health and if the complainant has visited a doctor or counsellor. In that case, permission should be sought to obtain records or to discuss the consultation;-
the complainant should be questioned about inconsistent evidence and whether it can be explained;-
how this matter could be resolved to the complainant=s satisfaction.
The complainant should be told that it is important to make a full statement. At the end of the interview, the complainant should be asked if there is anything else he or she can think of which is relevant to the complaint. The complainant should be advised to get in touch with the investigator if new information becomes available.
At the end of the interview the complainant should also be asked to sign his or her statement and told not to discuss the matter with possible witnesses.
Interviewing The Alleged Offender
The investigator should interview the alleged harasser with the same respect and courtesy shown the complainant. Do not assume the person is guilty before the investigation has been completed.
The person against whom a complaint has been made should be asked to give an account of what happened from his or her perspective. The person should be told that as much information as possible will be required to allow an impartial decision to be made. Again, the investigator should use open, not closed questions. Also, the following information should be obtained:
obtain the names of witnesses who can speak in the defence of the alleged offender;-
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the alleged offender should be asked to describe in detail the working relationship with the complainant;-
allegations should be addressed in turn and detailed explanations or defences documented. Any written records or documents should be obtained;-
ask for an explanation where inconsistent information is provided;-
the alleged offender should be advised that a full response is important and asked if there is any other information which might be helpful to the complaint;- the alleged offender should be told that there will be an opportunity to comment on any additional information brought forward by the complainant;
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the alleged harasser should be told not to contact possible witnesses.
Interviewing Witnesses And Further Investigation
Persons interviewed should be those whose names have been provided by the parties and anyone else considered to have relevant information. They would include:
eye witnesses;-
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anyone who overheard the incidents complained of;-
anyone who saw or talked with either of the parties immediately after an alleged incident;-
anyone who previously complained of sexual harassment by the alleged offender;-
any doctor or counsellor who can support a complaint or confirm stress related problems which are a result of sexual harassment.Witnesses should not be given the details of a complaint but advised that you are investigating sexual harassment allegations and asked if they have any relevant information. Witnesses can be questioned about any information the parties said they could provide.
Eye witnesses should be asked about dates, times, places and to describe what was observed. Witnesses should be asked how far away they were at the time and any other relevant conditions such as lighting, etc. Again questions should be open ended. Any person who spoke with the complainant immediately after the incident should be asked about dates, time, place, what he or she was told, and how the complainant looked and behaved.
Any suggestion that the motivation for the complaint was poor work performance or retaliation should be investigated. If work performance was an issue, performance appraisals should be checked to ensure the poor work performance is not a result of stress associated with the alleged harassment. Similarly, if a warning was given regarding performance around the time of the alleged incidents, the complaint could have been retaliation by the complainant or the warning could have been the result of the complainant rejecting the alleged offender
=s advances. Where work records are relevant, those responsible for the records should be interviewed where possible.
The Human Rights Code for the province of Newfoundland and Labrador prohibits harassment and sexual solicitation as outlined in sections 12 and 13. You will note that section 12 prohibits harassment on several grounds. While this booklet covers only sexual harassment, the complaint and investigation procedures as outlined could be applied to other types of harassment in the workplace. Section 2(g) of the Act defines harassment.
Aharass@ means to engage in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.Section 12:
A person in an establishment shall not harass another person in the establishment because of the race, religion, religious creed, sex, sexual orientation, marital status, physical disability, mental disability, political opinion, color or ethnic, nation or social origin.
Section 13:
(1) A person who is in a position to confer, grant or deny a benefit or advancement to another person shall not engage in sexual solicitation or make a sexual advance to that person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome.
(2) A person who is in a position to confer or deny a benefit or advancement to another person shall not penalize, punish or threaten reprisal against that person for the rejection of a sexual solicitation or advance.
Section 2:
(g)
In addition to sections 12 and 13, section 9 prohibits, among other things, discrimination on the basis of sex. The courts have said that sexual harassment is a form of discrimination on the basis of sex.
CONTACTING THE HUMAN RIGHTS COMMISSION
The Human Rights Code provides for a complaint to be filed with the Human Rights Commission within 6 months of the event giving rise to the complaint or where there is a continuing contravention within 6 months after the last incidence of the alleged contravention.
Whether an employer has an internal policy and procedure for dealing with complaints or not, a victim of harassment and discrimination has a right to bring a formal complaint to the Commission within the 6 month time frame.
The Commission may be contacted by visiting the office in person or by telephone:
Human Rights Commission
2nd floor, Beothuck Building
20 Crosbie Place
St. John
Mailing address:
Box 8700
St. John
Telephone:
709-729-2709
Toll free 1-800-563-5808
Fax:
709-729-0790