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Employment & Labour

Employer’s guide to sexual harassment complaints

In the first instalment of a three-part series, Ottawa employment lawyer Ella Forbes-Chilibeck explores key considerations for employers when dealing with complaints of sexual harassment.

As workplace culture continues to evolve following the #MeToo movement, employers need to be aware of their employees' conduct and quickly handle any issues that arise with a thorough and unbiased investigation, says Ottawa employment lawyer Ella Forbes-Chilibeck.

“Employers need to be proactive so that employees don't think this inappropriate behaviour is OK. They should have sexual harassment procedures and policies in place and they need to have conversations with staff and open the door for employees to come forward with complaints,” Forbes-Chilibeck tells AdvocateDaily.com.

“If you do that you will be in a better position to deal with problems before they escalate.”

Forbes-Chilibeck, founder of Forbes-Chilibeck Employment Law, represents employee and employers in sexual harassment cases and she also works as an investigator examining harassment claims.

“You need to take each complaint — even an informal one — very seriously. Listen actively to what’s being said,” she advises.

“Don’t ever turn a blind eye if you suspect someone is being sexually harassed.”

Forbes-Chilibeck recommends reviewing any company policies as well as the provincial Occupational Health and Safety Act (OHSA), the applicable human rights legislation and the Canada Labour Code, which governs federal workplaces.

“Employers need to ensure their workplaces are compliant with the appropriate legislation.”

Workplaces need to post an OHSA-compliant workplace harassment policy — which sets out the process for making a complaint of sexual harassment — in a place where staff can see it, she says.

To be deemed sexual harassment, "a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression must be displayed," unless a single act is particularly egregious, says Forbes-Chilibeck, adding the recipient must consider the conduct unwelcome.

If a complaint is filed, Forbes-Chilibeck, says the employer must conduct an investigation that is unbiased and independent.

She says ensuring you have a competent investigator is crucial.

“Research the person you’re considering hiring as the investigator. He or she needs to be well-versed in the relevant law, have extensive investigation training and experience as well as the ability to conduct a thorough investigation in a timely manner," says Forbes-Chilibeck.

"Most importantly, that investigator has to be unbiased and neutral.  Any investigation has to be completed in a way that recognizes that the credibility, reputation and careers of both parties may be at stake.”

She says if the company decides upon an internal investigation, they must be careful to ensure there can be no bias or even the perception of bias.

Forbes-Chilibeck encourages anyone who is being harassed to alert their company's senior management and let due process unfold.

“Until recently we’ve lived in a climate where people were too hesitant and afraid to make a complaint. That is now changing. But at the same time, we need to be careful that the right process is followed, and the investigation is conducted in a way that is transparent and beyond reproach.”

Forbes-Chilibeck says the current environment can be challenging for employers and they may be uncertain and hesitant about what steps to take if sexual harassment is alleged.

“More people are bringing complaints that frankly should have been brought forward years ago. The last thing we want to do is create a chill where people are afraid to file a complaint, so organizations must follow the correct procedures,” she says.

“Deal with complaints right away and in a way that’s fair to both parties.”

Forbes-Chilibeck says there is a broad range of possible outcomes, from educating workers all the way to termination.

“Be proactive and ready to make hard decisions,” she says.

Stay tuned for part two where Forbes-Chilibeck will offer guidance on how to conduct workplace investigations.

To Read More Ella Forbes-Chilibeck Posts Click Here
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