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Harassment and investigations in the #me too era

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Presented November 8, 2018 to The Talent Company

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Harassment and investigations in the #me too era

  1. 1. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Harassment and Investigations in the #MeToo Era The Talent Company November 8, 2018 Presented by: Stuart Rudner 1
  2. 2. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Disclaimer The user is authorized to use this presentation for the user’s own needs only, and is not authorized to make copies thereof for sale or for use by others. This presentation is not provided for the purpose of providing legal advice. Every situation is unique and involves specific legal issues. If you would like legal advice with respect to the topics discussed in this presentation, or any Employment Law matter, we would be pleased to assist you. 2
  3. 3. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Overview 1. Workplace Harassment in 2018 2. Bill 132 3. Creating a Written Policy 4. Responding to Allegations 5. Conducting Investigations 6. Training Workers 3
  4. 4. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Headlines You Don’t Want CBC protected Jian Ghomeshi, say two ex-colleagues with new harassment claims Netflix’s Disturbing Sexual-Assault Hypocrisy Former Comcast Employees Describe Sexual Harassment Allowed to Run Amok at Call Centers for Years 4
  5. 5. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Risks of Non-Compliance ● Bad PR ● Legal liability ○ Wrongful dismissal ○ Punitive damages ○ Moral damages ○ Infliction of emotional distress ● Fines under the OHSA 5
  6. 6. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bill 132 ● What we know ○ Lots of new inspectors ○ Influx of harassment and sexual harassment complaints ○ Managing is not harassment, even if harsh ● Still more questions than answers! ○ Employers and inspectors figuring it out together ○ Employer experiences and anecdotes 6
  7. 7. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bill 132 ● What we know (cont’d) ○ Bill 132 applies to third parties (i.e. customers, tenants, etc.) ○ Increased fines under the OHSA ● What do you need to do? ○ Update policies & procedures ○ Ensure you are prepared for complaint ○ Know how to conduct investigation 7
  8. 8. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bill 132 Expanding the Definition of “Workplace Harassment”: ● Engaging in course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome; or ● Workplace sexual harassment 8
  9. 9. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 “Workplace Sexual Harassment”: ● Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or ● Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome 9
  10. 10. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Not Harassment A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment 10
  11. 11. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 New Obligations for Employers ● Develop and maintain a workplace harassment program in consultation with joint health and safety committee or health and safety representative (if any) ● Establish a complaint mechanism for reporting complaints or incidents of workplace harassment to the employer AND to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser 11
  12. 12. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 New Obligations for Employers ● Conduct investigation whenever it becomes aware of a complaint or incident of workplace harassment ● Maintain confidentiality of information ○ Unless disclosure is necessary for purposes of investigating or taking corrective action with respect to incident or complaint, or is otherwise required by law ● Notify complainant and respondent in writing of the results of an investigation and any corrective action taken 12
  13. 13. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 New Powers for Inspectors ● Power to order an independent investigation, at expense of employer, by an impartial person and to obtain a written report by that person ● Ministry hired ~30 new inspectors 13
  14. 14. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bill 132 in Practice There are Still More Questions than Answers! ● Limited case law applying Bill 132 ● Much of what we have learned comes from experiences shared between employers and counsel ● The Ministry’s Code of Practice contains the most comprehensive guidelines with respect to compliance 14
  15. 15. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 New Tort of Harassment Merrifield v The Attorney General: Ontario Superior Court held that harassment, including workplace harassment, is a cause of action in this province 15
  16. 16. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 New Tort of Harassment ● In Merrifield, RCMP officer brought civil claim alleging superiors harassed & bullied him ● Judge found each branch of test met and focused on RCMP’s failure to investigate Award: ● General damages for harassment and intentional infliction of mental suffering: $100,000; and ● Special damages for lost income due to career setbacks: $41,000 16
  17. 17. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 New Tort of Harassment The legal test: ● Was conduct of defendant toward plaintiff outrageous? ● Did defendant intend to cause or have reckless disregard for causing plaintiff to suffer from emotional stress? ● Did plaintiff suffer from severe/extreme emotional distress? ● Was outrageous conduct of defendant the actual and proximate cause of emotional distress? 17
  18. 18. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Anderson v Law Help Ltd. and Alessandro ● Anderson was Legal Assistant/Paralegal ● Alleged individual respondent subjected her to sexual harassment, sexual advances and solicitations, and reprisal in the workplace ○ Led to her resigning only two months after starting work ● Sought $50,000 as compensation for injury to dignity, feelings and self-respect at the HRTO 18
  19. 19. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Anderson v Law Help Ltd. and Alessandro ● Evidence of harassment via text messages ● Respondents held jointly and severally liable Award: ● Damages pursuant to Human Rights Code: $20,000.00; ● Damages for lost income: $5,400; and ● Monetary compensation for future counselling sessions: $2,000. 19
  20. 20. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Doyle v Zochem Inc. ● Doyle was plant supervisor and health and safety coordinator, and only woman in the plant ● Experienced repeated sexual harassment from plant maintenance manager, including: staring at her breasts and miming taking a picture of them, repeatedly telling her she needed to get “laid”, or needed “a little pounding”, etc. ● Doyle reported the sexual harassment, but employer did only a “cursory” investigation 20
  21. 21. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Doyle v Zochem Inc. ● She was assured that her job was secure, but was dismissed one week later (decision had already been made) ● She suffered serious mental distress as a result Award: ● Damages for wrongful dismissal: $55,849.99; ● Damages pursuant to the Human Rights Code: $25,000.00; and ● Moral damages: $60,000.00 21
  22. 22. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Increased Fines under the OHSA As of December 14, 2017, fines for violations of the OHSA have increased substantially: ● Fine for individuals increased from $25,000.00 to $100,000 ● Fine for corporations increased from $500,000.00 to $1,500,000.00 22
  23. 23. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Complying with Bill 132 ● Policies and processes should be written, communicated, enforced and updated as needed ● Retain records of harassment and discrimination complaints, investigation processes and reports ● Act in a timely manner ● Confidentiality should be maintained ● Train your employees ● Investigate complaints properly before taking disciplinary action ● Communicate findings of the investigation with the parties, and outline what steps will be taken to resolve the matter ● Ensure a safe work environment free from harassment, discrimination, and reprisals 23
  24. 24. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Creating a Written Policy Essential Elements of Policy/Program Mission Statement The Company’s commitment to maintaining a harassment free workplace Clear statement of who the Policy applies to Encourage Reporting 24
  25. 25. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Creating a Written Policy Essential Elements of Policy/Program ● Definition of Workplace Harassment/ Definition of Workplace Sexual Harassment along with examples of each ● Process and Measures for Reporting Harassment to the Employer/Supervisor, and to an Alternate 25
  26. 26. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Creating a Written Policy Essential Elements of Policy/Program ● Procedure for Conducting Investigations ● Process by Which Complainant and Respondent will be Advised, in Writing, of Outcome of Investigation ● Measures for Preserving Confidentiality 26
  27. 27. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Creating a Written PolicyEssential Elements of Policy/Program ● Sanctions for Breach of Policy ● Prohibition on Reprisal for Good Faith Complaints/Retaliation Against Anyone Participating in an Investigation 27
  28. 28. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Creating a Written Policy Essential Elements of Policy/Program ● The Provision of Training and Instruction to Workers ● Record keeping policy 28
  29. 29. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Implementing Policies ●Publicize policies ●Train all employees: staff, managers, supervisors, executives ●Monitor behaviour ●Discipline offenders ●Update regularly ●Incorporate into employment contracts 29
  30. 30. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Responding to Allegations ● Do not ignore ● Act expeditiously ● Check policy ○ Requirements for investigation / timing / people involved ■Review policy now to ensure not overly restrictive ● Consider other obligations (i.e. union) 30
  31. 31. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Responding to Allegations ● Notify respondent ○ Warn re interference ● Be mindful of complainant and accused ○ Ensure safe work environment ○ Consider referral to EAP ○ Interim suspension / transfer? ● Do not promise lack of repercussion 31
  32. 32. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Hallmarks of a Good Investigation ● Unbiased ● Thorough ● Timely ● Well documented ● Defensible conclusions ● Recommendations & action items 32
  33. 33. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations First Steps in the Investigation Process ● Consult your policy ● Contact your Employment Lawyer ● Determine who is going to conduct the investigation ○ Internal or external third party investigator? ● Develop an investigation plan ● Do not begin with a conclusion or investigate for purpose of proving misconduct ● Are any interim measures necessary? 33
  34. 34. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations ● Internal vs external ○ Seriousness of allegations ○ Sensitivity of issues ○ Appearance of bias ○ Expertise ○ Availability ○ Cost 34
  35. 35. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations Interviewing the Complainant/Respondent and Witnesses ● Interview complainant ● Do not make promises of confidentiality you cannot keep ○ But promise reasonable efforts ● Collect ○ All relevant details ○ Evidence with respect to incident(s) (e.g. emails, text messages, photos, etc.) and ○ Names and contact information of witnesses 35
  36. 36. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations Interviews ● Respondent must be given a fulsome opportunity to respond to allegations ● Including full understanding of specific allegations made against them 36
  37. 37. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations Interviews ● Any witnesses must also be interviewed and any additional evidence collected ● It may be necessary for complainant/respondent or witnesses to be interviewed multiple times in order to respond to new evidence obtained during investigation process 37
  38. 38. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations Interviews ● Investigator must take detailed notes ● Interviewee to sign off / confirm ● All participants should be reminded of obligations of confidentiality 38
  39. 39. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations Reaching a Conclusion ● Once all evidence is collected, investigator must reach a conclusion ● Was there harassment or not? ● Don’t cop out – reach a conclusion ● Assess credibility ○ Compare to evidence ○ What has “air of reality”? 39
  40. 40. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations Reaching a Conclusion ● Decision based on balance of probabilities ● Ensure it is supportable ● You may be cross-examined 40
  41. 41. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Preparing a Report ● Background / allegations ● Mandate ● Process ● Documents ● Witnesses ● Policies ● Evidence 41
  42. 42. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations Corrective Action ● Employer must then determine what, if any, actions must be taken based on investigator’s report ● Options include: ○ (Re)training ○ Mediation ○ Verbal warning ○ Written warning ○ Suspension (with pay) ○ Dismissal (with or without cause) 42
  43. 43. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations Communicating the Results ● Complainant and respondent must be informed, in writing, of results of investigation and any corrective action to be taken ○ Does not mean providing them with a copy of investigation report ● How much detail an employer is required to provide to a complainant/respondent is not expressly set out 43
  44. 44. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 The Importance of a Fair Investigation ● Investigate first ● Ensure fairness, objectivity, thoroughness ● Give opportunity to respond ● Often, employee response is critical factor in determining appropriate discipline 44
  45. 45. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Vernon v British Columbia ● 30 year employee accused of bullying/harassment ● Known as “The Little General” ● Offensive language, racial and other inappropriate comments 45
  46. 46. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Vernon v British Columbia ● Court found that investigators ○ Pre-judged ○ Attacked accused and interrogated those who supported her ○ Admitted that “when she wrote the Recommendation Memo, instead of objectively reporting the investigations findings, she was trying to prove Ms. Vernon guilty of misconduct” As the court concluded, the “investigation was flawed from beginning to end. It was neither objective nor fair” 46
  47. 47. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Vernon v British Columbia ● Result ○ 18 months’ notice ○ $35k in “The Damages Formerly Known as Wallace” ○ $50k punitive damages 47
  48. 48. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Burlington (City) v Canadian Union of Public Employees, Local 2723 ● Employee brought harassment complaint against two co-workers. Employer dismissed the two co-workers ● Another employee, a close friend of the co-workers, brought a harassment complaint against the first employee ● Employer proceeded with investigation, concluded grievor had sexually harassed complainant, and dismissed her 48
  49. 49. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Burlington (City) v Canadian Union of Public Employees, Local 2723 ● Arbitrator Slotnick reinstated grievor - claims of sexual harassment were not made out and had been exaggerated ● Employers have a responsibility to “guard against complaints that are made for improper ulterior motives” ● Employer almost blindly overlooked circumstances of complaint and failed to acknowledge possibility that complainant may have been “embellishing” his story as “pay back” against the grievor ● Investigator was aware complaint could be less than genuine, but did not mention / assess this in report 49
  50. 50. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law ● TAKEAWAY: ○ Employers and investigators must consider all relevant evidence before them in conducting investigation and reaching a conclusion, including evidence that may suggest the employer’s complaint reporting process is being abused for ulterior motives ○ Where employer discovers that a complaint has been made in bad faith, employer must be prepared to respond ○ Employers should include wording in harassment policy indicating employees who use complaint process to make allegations/complaints for malicious purposes will be subject to discipline, up to and including dismissal for cause 50
  51. 51. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Training Workers ● All workers/supervisors are required to complete general Health and Safety Awareness Training ● In addition to this general training, workers must be trained specifically on the employer’s workplace harassment and violence policy and program ● Formal training is better than letters/policies 51
  52. 52. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Training Workers ● Training must be appropriate to duties/responsibilities of employees ○ e.g. More training for managers and supervisors on responding and recognizing harassment ○ Investigation training mandatory for anyone who may conduct internal investigations 52
  53. 53. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Training Workers ● New employees should be trained ASAP after joining ● Employees should confirm receipt of training by signing off 53
  54. 54. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Questions? 54
  55. 55. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Contact Us 416.864.8500 905.209.6999 info@rudnerlaw.ca 100 Allstate Parkway Suite 600 Markham, ON L3R 6H3 55 Presented By: Stuart Rudner 416.864.8501 stuart@rudnerlaw.ca Sign up for our Newsletter!

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