Partner at renowned firm, TDS Law, Scott Hoeppner is an expert in labour and employment law. He’s also guided numerous organizations through workplace investigations, providing legal support along the way. In this week’s podcast, he shares his expertise on how to make employees feel supported should they experience sexual assault, harassment or discrimination on the job, and the steps a company can take to investigate such allegations.
What is sexual harassment and discrimination?
Before we dive into appropriate action and policy, we need to understand what sexual harassment and discrimination is. Scott explains that definitions vary depending on the source and your jurisdiction in Canada. Knowing the definitions for legislation applicable where you live is helpful not only for clarity, but so you can adopt it into your company’s own harassment policy.
Having such a policy is a good first step to managing the issues that arise in your workplace. It provides a road map for you and your employees, not only to provide clarity regarding what’s considered acceptable behaviour, but to provide guidance when someone ventures into unacceptable territory. It also ensures you’re clear on the steps to take in the event that you have to launch an investigation.
In some regions, a harassment policy is required by law. Some regional organizations offer a draft policy that you can adapt to your own needs, although Scott recommends having a lawyer prepare a more robust harassment policy to cover any circumstance.
“It becomes difficult to find the forest for the trees,” says Scott, describing the chaos that can erupt when you’re thrust into an unexpected situation. “When you have the policy and counsel to fall back on, it gives you a degree of comfort.”
When it comes to investigating a complaint, a harassment policy can lay the groundwork but there are other things to consider, too. Namely, how to approach a delicate situation in a way that is fair and just.
Scott takes us through what you can do if you’re presented with a complaint.
Talking about what’s allegedly happened can be nerve wracking. It might be a personal issue, or there could be distrust from the complainant that it won’t be taken seriously. The best thing you can do is to listen.
“Sit down with them on a personal level and say, ‘Okay, I understand that you have a problem,’” says Scott. “’Please let me know what’s happened.’”
At this point, you’re not making a judgment call. You’re simply trying to understand the story from the complainant’s perspective.
Having another person in the room, taking notes while you ask questions, can give you full capacity to be the listener and the facilitator. It also gives you another set of ears to recollect what’s been said. So, from a practical perspective, having another person participate in the interview with you can certainly be of assistance —but from a personal perspective, it’s vital to understand and respect the complainant’s wishes. 2. Keep it confidential (as much as possible).
It might go without saying, but keeping the details of the investigation under wraps protects those involved.
“Whoever’s investigating this is most likely going to have to make a credibility determination,” says Scott. “They’re going to say, complainant told me story X, respondent told me story Y, maybe there’s some other witnesses who said A, B and C, so who’s telling the truth and what makes sense to me?”
If, by chance, the story gets out and you’re seeing your company’s name in a less-than-positive light because of it on social media, Scott recommends rising above the chatter.
“It doesn’t mean that you don’t say anything, but it might mean that you post a generic response on the company’s website addressing rumours and certain allegations,” he says. This keeps the confidentiality at the forefront and provides fair and just communication on behalf of all parties involved.
3. Keep it timely.
The sooner you follow up with concerns, the better.
“Justice delayed is justice denied,” Scott says. “For both the complainant and the respondent, this is something you need to nip in the bud one way or another.”
The way you handle an allegation will affect the complainant and the respondent, as well as the future of your business.
“Right or wrong, these stories live on,” says Scott.
As an employer, you want to ensure you’re investing in human capital and, quite simply, doing the right thing. While it will benefit your business, it will also benefit the people who make your business what it is – and that’s a win-win all around.