Workplace harassment is a business-critical issue in all places of work and should be taken extremely seriously, particularly in the emerging and high growth companies space. Employers have an obligation to provide a safe workplace and have specific responsibilities under applicable legislation including developing and implementing policies, training and investigating workplace harassment. In addition to the detrimental effect on the well-being of employees, the potential costs and risks associated with workplace harassment include monetary damages, reputational risks, low employee morale, legal costs and more.

1. Osler, Hoskin & Harcourt LLP
Work Place Harassment 101
for Start-Ups
April 2018
Steven Dickie, sdickie@osler.com
Allison Di Cesare, adicesare@osler.com

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WHY ARE WE HERE? COSTS OF WORKPLACE HARASSMENT:
 Penalties/damages awards against the Company
 Employees may be personally liable
 Public image – potential PR nightmare
 Impact on fundraising
 Employee morale, turnover, absenteeism, etc.
 Legal costs
 Etc.
WORK PLACE HARASSMENT 101 FOR START-UPS

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OBJECTIVES:
Basics of the legal framework
How and when to conduct a harassment
investigation
Risk management techniques and best practices
Case studies
WORK PLACE HARASSMENT 101 FOR START-UPS

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OVERLAPPING LEGAL REGIMES
 Human rights legislation
 Narrower: workplace free from harassment and
discrimination based on “protected grounds”
 Occupational health and safety legislation
 Expansive, doesn’t have to be linked to a protected ground
 Harassment is broadly defined
 Recently amended to add to employer obligations
WORK PLACE HARASSMENT 101 FOR START-UPS

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SCOPE: THE WHO AND THE WHERE
 Protecting workers at the workplace
 Workers: employees, contractors, interns/students
 Workplace:
 Not just the physical office
 Think: conferences, social media, after work drinks
 Essentially, anything connected to work
 Extends to protecting workers from harassment by third
parties
WORK PLACE HARASSMENT 101 FOR START-UPS

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WHAT IS WORKPLACE HARASSMENT?
 “Engaging in a course of vexatious comment or conduct that is
known or ought reasonably to be known to be unwelcome”
 Includes, but is not limited to, sexual harassment
 Not about intention - it’s about effect and impact (reasonable
person standard)
 Can be one act or comment, or a pattern
 Context is important
WORK PLACE HARASSMENT 101 FOR START-UPS

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EXAMPLES OF WORKPLACE HARASSMENT
• Insulting, intimidating, demeaning, annoying, embarrassing
or otherwise offensive behaviour
• Inappropriate or unwelcome focus or comments on a
person’s physical characteristics or appearance
• Bullying or cyberbullying
• Isolation and shunning, gossip, rumours, negative blogging,
insults, name-calling
• Slamming doors, throwing objects and physical contact
WORK PLACE HARASSMENT 101 FOR START-UPS

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NOT HARASSMENT:
Reasonable action taken by the Company or a manager relating
to the management and direction of workers (e.g. coaching,
performance reviews, discussion of performance expectations,
managing absenteeism)
WORK PLACE HARASSMENT 101 FOR START-UPS

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WHAT IS WORKPLACE SEXUAL HARASSMENT?
“Making a sexual solicitation or advance where the person
knows or ought reasonably to know that the solicitation or
advance is unwelcome”
A subset of workplace harassment
WORK PLACE HARASSMENT 101 FOR START-UPS

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EXAMPLES OF SEXUAL HARASSMENT
▪ Unwelcome sexual advances, requests for sexual favours
▪ Other verbal or physical conduct of a sexual nature including
sexual jokes, graphic spoken commentary about a person’s
body, derogatory or degrading remarks, leering, whistling,
unwanted touching, massaging, hugging, kissing, tickling,
pinching, patting
▪ Sexual assault
▪ Enquiries or comments about a person’s sex life
▪ Displaying sexually offensive material in the workplace or
inviting other employees to view such material
WORK PLACE HARASSMENT 101 FOR START-UPS

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KEY OBLIGATIONS
 Prepare a policy
 Specific legislative requirements for what goes in
 Follow the policy
 Train staff
 Investigate incidents and complaints of workplace harassment
 No retaliation/reprisal
WORK PLACE HARASSMENT 101 FOR START-UPS

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WHEN TO INVESTIGATE
 Duty to investigate incidents and complaints of workplace
harassment
 Supervisor/manager knowledge = Company knowledge
 Investigation must be “appropriate in the circumstances”
 Failing to properly investigate is an independent violation of
the legislation
When in doubt, investigate!
WORK PLACE HARASSMENT 101 FOR START-UPS

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INVESTIGATION STEPS
 Receive complaint/document incident
 Determine the investigator
 Informed and impartial
 Internal or external?
 Develop investigation plan
 Interview logistics – people in the room, order of meetings,
location
 Identify issues
 Review relevant policies/procedures
 Develop the questions to be asked
WORK PLACE HARASSMENT 101 FOR START-UPS

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INVESTIGATION STEPS (CONT’D)
 Workplace harassment investigations must be “appropriate in
the circumstances”
 Confidentiality
 Thoroughness – interview everyone involved (including
witnesses)
 Respondent opportunity to respond
 Collect and review relevant documents
 Take notes and statements
 Prepare a written report
 Follow up with complainant and respondent
WORK PLACE HARASSMENT 101 FOR START-UPS

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CONCLUDING THE INVESTIGATION
 Analyze/evaluate the evidence
 Relevance
 Credibility
 Make conclusions – “balance of probabilities”
 Is it more likely than not that the alleged harassment took
place?
 Talk to the decision-maker
 Inform the complainant and respondent in writing of the
results of the investigation and any corrective action that
has/will be taken
WORK PLACE HARASSMENT 101 FOR START-UPS

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ADDITIONAL INVESTIGATION BEST PRACTICES
 Be timely – memories aren’t reliable
 But don’t rush!
 Questions
 Start general, move to specific
 Neutral phrasing
 Poker face
 Ask interviewee to clarify/elaborate where necessary
 Document, document, document
 Ensure the complainant is not exposed to continuing harassment
during the investigation
 Consider whether temporary measures are needed pending
investigation
WORK PLACE HARASSMENT 101 FOR START-UPS

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CASE STUDIES : DOYLE v. ZOCHEM INC.
• Plaintiff complained of sexual harassment
• Employer ignored complaint
• Employer conducted “cursory” investigation
◦ Did not interview plaintiff
◦ Did not allow plaintiff an opportunity to respond
• Plaintiff terminated without cause
WORK PLACE HARASSMENT 101 FOR START-UPS

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CASE STUDIES : DOYLE v. ZOCHEM INC. (CONT’D)
• Employer appeal dismissed by Court of Appeal
• Wrongful dismissal damages equal to 10-month
notice period
• $60,000 moral damages award
◦ Inadequate response to plaintiff’s complaint
◦ The investigation was self-serving and unfair
• $25,000 human rights award
◦ The defendant’s failure to properly investigate the plaintiff’s complaint
breached the Human Rights Code
• Moral damages and human rights damages for the same facts does
not constitute double recovery
WORK PLACE HARASSMENT 101 FOR START-UPS

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ADDITIONAL CASE EXAMPLES
WORK PLACE HARASSMENT 101 FOR START-UPS

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TIPS ON PREVENTING CLAIMS
 Open door policy: encourage employees to come to you with
concerns.
 Lead by example: express disapproval of inappropriate
conduct and demonstrate that harassment will not be
tolerated.
 Understand and abide by your legal obligations
 Take complaints seriously: don’t ignore them or make
judgment calls before you’ve looked into them
 Make objective, consistent employment decisions
 Don’t wait for things to get worse
 When in doubt, call the lawyers
WORK PLACE HARASSMENT 101 FOR START-UPS

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WORK PLACE HARASSMENT 101 FOR START-UPS
Allison Di Cesare
Associate, Employment & Labour
CONTACT INFORMATION
adicesare@osler.com
tel: 416.862.6725
Steven Dickie
Associate, Employment & Labour
CONTACT INFORMATION
sdickie@osler.com
tel: 416.862.4275