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Workplace Harassment 101: Fundamentals of the law and risk mitigation strategies

Jun 6, 2018

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.

For employers, understanding your obligations is key to mitigating these risks and guarding against unintended consequences. This presentation by Steven Dickie and Allison Di Cesare, associates in Osler’s Employment & Labour Group, describes key obligations for employers with respect to workplace harassment. Available in both webinar and PowerPoint format, the goal of this presentation is to help you navigate the following issues:

  • costs associated with workplace harassment
  • basics of the legal framework, including human rights legislation and occupational health and safety legislation
  • conducting a harassment investigation: how, when and best practices
  • risk management techniques and best practices
  • definition and examples of workplace harassment
  • case studies


For more information, contact Steven Dickie in Osler’s Employment & Labour Group.

This presentation is part of Osler’s Emerging and High Growth Companies 101 series, designed to help emerging ventures navigate through the various issues and legal requirements they will encounter throughout their growth cycle.

Video transcript

STEVEN DICKIE: So, I'm a senior associate in the Labor and Employment Group. And I work closely with Simon and the other corporate associates. And I look around the room and see some clients. So, welcome everybody.

ALLISON DI CESARE: Again, I am Allison. And I'm a little more junior to Steve, but also, I an associate who works closely with a lot of startup clients, including some of the people in this room. So, I'll get it started.

I guess Simon already kind of led it off with the let's start by scaring you approach, which is kind of how we go about it. Like Simon said, it's hard to pick up a newspaper or go online without seeing a new person, or new company, or someone under scrutiny for something related to harassment. And it's no different at the workplace.

And frankly, in the startup space, in particular, there's already a reputation, whether deserved or not for creating an environment that might create a higher risk of harassment, and particularly sexual harassment, because you've got things like conferences abroad, where you're staying in Airbnb together. You've got drinks in the office and things like that, industry events, more of an informal work environment. And that's all great from a company culture standpoint. And that's what people love about working with startups, but there's also important risks that you need to be cognizant of.

And it's important for the senior people in the company, like yourselves, to know so that it can trickle down to everyone else, and you can set an example. So, Simon already touched on a couple of them, but potential consequences of workplace harassment, there's obviously the financial costs, the big one. This falls under different legislation, as Steve will talk about, but there are a whole range of potential penalties that can result from failing to investigate properly, in particular. It can include, not just company liability, but also potential of director liability in extreme cases.

And there's also PR standpoint, like Simon mentioned, growth of the business. Investors certainly look for clients with this type of thing, and then lastly, just employee morale. A harassment issue disrupts the team. It disrupts the workplace. And it disrupts the work environment.

So, these are what we're going to try and cover as quickly as possible. I think Steve and I have probably given our long presentations on each one of these on their own. So, we're going to be really doing kind of a 10,000 foot view of all this. But certainly, if you have any questions, we can chat after, reach out to us separately

STEVEN DICKIE: Thanks, Allison. So just so we level-set in terms of the legislative overview and what applies to this general topic of harassment, you've basically got two overlapping legal regimes. The first is human rights legislation, so in Ontario, the Ontario Human Rights Code. And the Human Rights Code sets out protected grounds on which individuals cannot be discriminated against because of a reason of those protected grounds, disability, race, gender identity, sex, religion, all things that we would be familiar with, all grounds that are protected under the Ontario Human Rights code.

So, any workplace, there's a legal obligation for employer to provide a workplace free of discrimination related to those grounds, but then the second legal regime that we talk about is occupational health and safety legislation, so in Ontario, the Occupational Health and Safety Act. And why this is important is that it provides anti-harassment protections, also workplace violence protections, but we're not going to talk about workplace violence today. Although, it is an important component of your risk management and ultimately your policy.

We're going to focus on harassment, but the Occupational Health and Safety Act does have anti-harassment provisions. They're more expansive. In this case, they don't need to be-- harassment as defined under the Occupational Health and Safety Act does not need to be related to a protected ground.

So really it could be something about just more garden variety bullying that isn't related to somebody's race, or disability, or family status, or anything like that, but it could be about their political viewpoint or about other life choices, decisions, preferences, and personality traits that aren't otherwise covered by the Human Rights Code. And harassment is broadly defined in the legislation. And we're going to get into that, but really your spidey senses need to be tingling whenever somebody says, I feel like I'm being treated unfair. I'm feeling like I'm being bullied. I'm feeling like I'm being mistreated, because I think that triggers an obligation to be thinking, does this rise to a threshold where we need to basically spring into action in a more formal course to address and discharge our legal responsibilities?

So really the scope of what this applies to is protecting workers at the workplace. And workers can be basically any individuals who are working inside your workplace. And that means employees, independent contractors, for sure, and also interns, and students, and other company workers, who happen to be interacting with you. Maybe they're employed by third parties, customers, or others that you interact with as part of your commercial strategy.

If they're in your workplace and they're subject to harassment, then it triggers a legal obligation for you to take action. And it might be different what you do and how you respond, depending on the circumstances. But basically, anybody that comes within your workplace is within the ambit of the protections of the legislation.

And this also applies, of course, to if members of the public harassing your workers in your workplace or people employed by other companies. Just because you don't have the ability to necessarily discipline or fire somebody like that, you still have obligations to investigate and take appropriate responses. So, the key takeaway is that this also applies inside the workplace. And really the modern workplace is not the four walls of your office anymore.

We all know that work follows us home. It's on our devices. It includes at the pub, after work drinks on Fridays, conferences, and trips, and retreats. All of that for sure is covered. It's not even really a question under the legislation.

And really in terms of that virtual or cyberspace application, I mean, that would be most often we would see that in terms of cyberbullying or people being sent inappropriate messages, texts, after work, or outside of working hours. If there's a nexus with work, you're essentially going to be covered, because this is public protection legislation, public welfare legislation. So, it would be always interpreted in the broadest possible way for the protection of most, the broadest number of people.

ALLISON DI CESARE: So, in terms of from a legislative standpoint, what workplace harassment is, what's said it on a slide is the definition from the Occupational Health and Safety Act. It's essentially the same when it comes from a Human Rights Code standpoint. It's just this when it's connected to one of the prohibited grounds of discrimination.

But, as you can, see this definition it's general. It's hard to understand what that really means. There are a number of examples of what it could cover. And one of the key things is it's not about the person's intention.

You can have completely innocent intentions saying something to one person. And maybe that one person receives it totally fine. You say something to another person and it has a very different effect.

And there is a reasonable person standard. If someone's being completely unreasonable and feeling like they were harassed by something, that won't amount to harassment at law if an objective, reasonable person would not consider that to be harassment. But it's really about, not the person's intention, their subjective intention. Most of the time, people aren't intending to harass, but it's the consequences of it.

And whether or not the person who is the subject of the harassment immediately reacted or said, I have a problem with this or stuck up their hand, that doesn't matter. They can appear to go along with it and come back and raise it later. And that can still fall under the definition of harassment. Sure.

AUDIENCE: So, unwelcome is incredibly subjective by itself. For some people, performance review is unwelcome.

ALLISON DI CESARE: Yes, well, and so you're anticipating two slides ahead. Because again, on a reasonableness standard, that's specifically excluded from the legislation. So, the next slide sets out a couple of examples. And to your point, it can be anything.

I had an example where it was someone who, it was a very small department, and someone would walk into the department every day and say hi to every single person except for one. And doing that one day, that's not going to be harassment. But doing it every single day, where you're essentially ignoring someone, making them feel unwelcome, excluding them, that can amount to workplace harassment. And so it's this whole broad range of potential activity.

And it also includes, as Steve will talk about, sexual harassment. That sexual harassment has its own definition, but it all falls under here, too.

STEVEN DICKIE: Just one point from that slide-- slamming doors, throwing objects, and physical contact-- that would be at the nexus between workplace harassment and workplace violence, which will trigger a potentially different response. And so, workplace violence just for a second doesn't necessarily to mean actual, like, punches thrown. It can be intimidating or threatening behavior.

So, all that to say is that can be a tricky question as well. So, if you're thinking a bit about boundaries, or, like, a spectrum, or whatever, there are blurred lines kind of both at the level of is it harassment or not, but then, is it harassment or is it something even worse? So, all that to say is you need to be engaged on this. And obviously, we can help.

ALLISON DI CESARE: Yeah. And then, in terms of what's not harassment-- so on the slide, this is specifically exempted under the Occupational Health and Safety Act. So, it's basically legitimate, reasonable, performance directives, performance management. We certainly see where employees claim that that's harassment. I have a human rights tribunal complaint about it right now. But if it's reasonable, and they're giving constructive criticism consistent with regular managerial supervisory responsibilities, that's not harassment.

But there's still a mix of the objective and the subjective here. If you do it in the context of a performance review, but the manager's saying, you're terrible at your job, you're awful, like, you don't belong here, everyone is better than you, just because it's in the context of performance management, that's not reasonable performance management. So that's not going to fall within this exemption.

STEVEN DICKIE: So, in terms of especially something that's been in the news a lot lately, you know, just going-- drilling down a little bit on sexual harassment, which really is just a subset of the broader topic of workplace harassment, there is a definition of it found in the applicable legislation-- making a sexual solicitation or advance where the person knows or ought reasonably to know that the solicitation or advance is unwelcome. And really, I think that-- and we're going to get into some hypotheticals at the end-- but in the year 2018, I think that maybe it always should have been this way, but I think the reality is it is now the expectation that nobody has to go along with a sexually charged workplace environment that involves teasing, innuendo, or sexual comments, or anything else in that respect.

And so, if-- it is going to be-- the legal obligation of all employers to look out for that, to address it when it happens, and to properly set those boundaries and expectations. Because even if people sort of go along with it at first or feel like they don't have the opportunity to speak up, that doesn't necessarily mean everything is OK, both in a general sense in terms of what's right, what's fair, but also in terms of a legal sense and your liability. So, I think that's a really, I think, key practical takeaway to keep in mind, that that's sort of like-- and maybe you can think back to jobs you might have had in high school or whatever where that was part of the culture, or other workplaces that you've been in.

And really, that's all going to fly from a legal perspective any longer. And it's incumbent on managers and leaders at organizations to take steps to address workplace sexual harassment. And so, you know, it is a definition that of course would include obvious things like assault or inappropriate touching. But unwelcome sexual advances, including repeatedly asking someone on a date perhaps, requests for sexual favors either implied or expressed, sexual jokes, commentary about a person's body appearance, inquiries into their sex life and dating history, leering, whistling, that kind of thing, and of course displaying inappropriate images in the workplace, or inviting others to display them, circulating jokes or whatever of a sexual nature-- anything like that will be found to be sexual harassment.

ALLISON DI CESARE: Yeah, as an example of that, and one that came up for Steve and myself, having different Slack channels where it's sort of off-work conversations but between staff, and there's ten people in the chat, and they're sharing a BuzzFeed article or something like that that might be pretty sexually charged. One person in the group thinks that that's inappropriate and you might have a problem.

STEVEN DICKIE: Yeah, Slack is a nightmare.

ALLISON DI CESARE: Slack can be a nightmare.

STEVEN DICKIE: But, you know, I know it's an important work tool for everybody here. But those are all written records. They're all producible.

ALLISON DI CESARE: Yeah, they're all saved forever.

AUDIENCE: How do you [INAUDIBLE] recommend monitoring that, or any--

ALLISON DI CESARE: I mean, the only way to really do it would be to say Slack is for conversations about work only. Take your personal outside of the office. But it's not reality.

STEVEN DICKIE: It's not realistic.

ALLISON DI CESARE: Yeah, It's not realistic. And the other thing to keep in mind, because I'm going to get to what triggers the duty to investigate after, but essentially, there's this obligation to investigate incidents or complaints of harassment. And so, if there's one manager, supervisor who's in that Slack channel, even if they didn't even read it-- like, maybe you go back, and there's been 80 messages, and you're not reading them all the way through. But even if they didn't read it and it later comes out that there was a manager in that group, that would have triggered the company's duty to investigate what was going on. And them not triggering that is itself a violation of the legislation, even though they didn't even turn their minds to it.

STEVEN DICKIE: But Larissa, to answer your question more broadly, I think whack-a-mole is-- we all recognize is completely unrealistic, like policing every interaction. So that's why it's about tone setting from the top and having the proper policies in place about what is and is not appropriate behavior. And then ultimately, no employer, really, if you run the company for long enough, you're going to have 100% success rate, that everybody is going to behave in terms of their interactions with each other.

But hopefully by imparting that culture, and the tone from the top, and having appropriate policies in place, that will get through. And I do think it does. And companies that prioritize that, it happens less. I mean, just in our experience, it happens less. So hopefully people will take that to heart, internalize that. And hopefully also, the changes-- the societal changes that we're seeing start to imbue themselves and really take hold in workplaces where people start to understand where those boundaries are.

ALLISON DI CESARE: So, in terms of key obligations with respect to harassment, as Steve said, like, number one, you should have a policy. I've had a lot of startup clients make offhand comments about how they don't need a harassment policy because they're small, and they're a startup. That's not the case. The obligation is triggered once you have five employees.

And honestly, even if you didn't have five, it's still good practice. Because even though you might not be required to have a policy written down on paper, all of these obligations still apply to you. So, by putting a policy in place, that sets the example for your team, management knows their obligations, and it trickles down all the way to the bottom.

STEVEN DICKIE: If I was triaging employment risks for startups, getting proper employment agreements in place for all of your employees is number one. This is number two.


STEVEN DICKIE: Before you do any other policy, this-- your workplace violence and harassment policy-- that's number two on the list as far as I'm concerned, before vacation policy, whatever. Like this is now on your steps to address your HR requirements. I think it should be that high on the list.

ALLISON DI CESARE: Yeah, I completely agree. And so, it's not just prepare a policy and say, we don't tolerate harassment in the workplace. There are very specific requirements in the legislation that we won't go into about what that policy has to include. Of course, we have precedents. We can help you prepare one. We can help you modify it so fits with your general corporate culture in terms of how it's framed. But there are very specific obligations in there.

STEVEN DICKIE: Obviously, we have an off the shelf one that meets all the legislative requirements. We can slap your company's name on it, and you're good to go. Obviously, it's detailed. And you have to live up to those obligations once you express them to your employees. But in terms of-- this doesn't need to be hard, is what we're saying. We have turnkey solutions for you. Just get in touch.

ALLISON DI CESARE: Yeah, so we've got that policy. But then, like Steve said, the key is you've got to actually follow it. It's not enough to just put it on your internet, or post it somewhere in the workplace, or email it once and say, oh, we put in this policy. You've got to follow it.

And that's going to be particularly important if you actually have workplace harassment occur. And then maybe you tried to fire someone because of it. They say, you've never enforced this, I didn't know about it, you never put this to me, that's going to be problematic. So, you've got to follow it. And part of following it is training your staff. That's going to be a requirement under the policy, and it's a requirement under the legislation. You have to provide training on workplace harassment, violence as well-- like Steve said, separate issue, but you're required to provide this training.

And then the next two points are investigating incidents and complaints of workplace harassment, which the next section of the presentation is going to get into in a lot more detail. And then the last point is just no retaliation no reprisal. You can't take any action against an employee, whether it's performance management, or termination, or anything, because they complained about harassment, even if it turned out there wasn't any harassment, or because they participated in an investigation.

And you can't tolerate it from one employee to the other. If the person who was allegedly doing the harassment turns around and gets mad at the harasser, or at the-- I'm getting all confused with my-- if the person who was alleged to be the harasser starts retaliating against the person who did the alleging, that's a problem, and it's contrary to the legislation.

STEVEN DICKIE: It's not only illegal, but it's also, of course, has a chilling effect on your employees if it's allowed-- if it's tolerated. And it will completely undermine your entire intent, purpose, and program designed to address these things. So, it's very toxic. | fact, it can be some of the most serious violations of the policy and violations of the legislation. It would be seen as an aggravating factor by an adjudicator, to the extent that retaliation or reprisal was either actively pursued by management or allowed to occur.

ALLISON DI CESARE: And it's part of the reason why investigating things properly is so important. Because we do often see cases where someone comes to us and says, hey, I want to terminate this person. And you found out that they had actually raised a complaint of harassment, it hadn't been properly investigated, and they are certainly going to allege that the termination is a reprisal for not properly investigating the harassment.

STEVEN DICKIE: Those cases are difficult and expensive to settle.

ALLISON DI CESARE: Yeah. OK, so let's move into to when to investigate. And honestly, if you take anything away from this, let it be that you need to investigate complaints and incidents of harassment. You need to. What that investigation is going to be might vary depending on what it is. If it's the CEO having a campaign of sexual harassment against all the women in the workplace, that's probably going to be a behemoth of an investigation where you engage a third-party investigator, and it's going to be quite a big thing.

If it's a he said, she said, where it's two people who don't get along, and work on desks beside each other, and they each say the other is mean to them. It's still going to trigger a duty to investigate, most likely. But that investigation's going to look very different.

STEVEN DICKIE: Degrees of formality will vary depending on the circumstance.

ALLISON DI CESARE: Yeah, exactly. And Steve is going to talk more about best practices for investigations. Like I said at the outset of the presentation, we've given very long presentations just on this topic in particular, and all the best ways to investigate, and the best ways to ask questions, and basically how to cross-examine the people you're interviewing. And we don't really have time for that. But if you have any questions, certainly reach out to us.

And like I said before, the key point here is supervisor or manager knowledge is deemed to be company knowledge, which is why it's so important that you guys, as the people at the top, are training everyone and communicating this to your management, so that they know that if they see something they need to say something. Because that's going to create liability for the company if they don't.

And an unfortunate consequence of that, sometimes, is what sometimes happens is the person who's allegedly being harassed doesn't want an investigation. They're made uncomfortable by it. They don't want to be involved. They don't want to sit in the meeting. And there are ways to be delicate about that and explain the process. But even if the person who's allegedly being harassed doesn't want you to do it, you have to investigate if you found out about it.

STEVEN DICKIE: And that's the technical legal obligation. And we will advise you that that is your legal obligation. There may be a time and a place where you make a business decision to take a risk and, say, not impose an investigation upon an unwilling complainant. We can help talk through the pros and cons, and maybe setting up some defensive structures in terms of confirming that individual's preference, and that if they change their mind, then you would go forward with an investigation.

So all that to say is these are things-- these are difficult questions and we can help you through them. And we have experience coming at it from a variety of angles. But I fully agree with Allison. There may be situations in which you either gently try to persuade the individual to confirm their complaint in writing and then proceed, or you say, notwithstanding your preference, our legal obligation is to proceed with an investigation, so that that is what we will be doing.

And those are tough cases. But, you know, it is balancing a lot of different considerations.

ALLISON DI CESARE: And then, the last point I want to raise about just generally when to investigate, before Steve talks about the process, is in addition to the costs, financial and otherwise, that I talked about at the beginning that can result from a failure to investigate, because of recent legislative changes, there is now also a power on the part of a ministry inspector to order you to either reinvestigate if they don't think yours was good enough, or just investigate in the first place if you didn't do it. And they would get you to engage a third-party investigator.

That means you lose control; you've got to pay for it. And not only that, it's putting it in a different limelight. You completely lose control over the investigation. It becomes potentially public. And this can result from a random audit on the part of the ministry, and it can also result from an employee complaint.

STEVEN DICKIE: So in terms of investigation steps, I am mindful of the time. And so, I'm just going to really gloss over this quickly. And Simon, I think everybody gets the slides? Yeah, OK, so I encourage you to review the slides in more detail.

And we have an investigation checklist we can provide you with as well. So, when you get your-- you know, everybody's first investigation, it's quite the milestone. We can set you up with sort of a detailed checklist about what to do, steps to do, what decisions you'll have to make, i.e. I always think of it as you need to assign-- if you're going to do it internally, you need to assign an investigator, and you need to sign a decision maker. And likely, those people won't be the same people, and how you decide who is appropriate in what role-- and some litigation tactical considerations, how you minimize witnesses, the number of witnesses that you might need by concentrating things. How do you make sure that you're setting up the appropriate individuals? Maybe it's not the best idea to make the CEO a potential witness in the investigation if he or she does not absolutely have to be.

So, all these things, we can help you through. Privilege-- tricky privilege issues, all of that stuff will be engaged on this topic. You know, ultimately, you do an investigation, you're going to need to conclude it.

ALLISON DI CESARE: Yeah, and the concluding-- so this is your decision make-- you've got your investigator, who's got to come to a decision about whether they think harassment occurred or not. And that's going to be thinking about gathering everything that they heard. Hopefully, they were taking notes in all the meetings, which they should be.

STEVEN DICKIE: If you're following our checklist.

ALLISON DI CESARE: If you're following our checklist, you were definitely taking notes, and then deciding, OK, frankly, oftentimes these situations are he said she said, or he said he said. So, you end up having to make assessments of who was more credible? Who seemed more confident in their story? Who was more confident in their recollection? Yeah.


ALLISON DI CESARE: This isn't criminal. If this were a criminal case, this would be completely different. This is just, do I think it's more likely than not that it happened.

AUDIENCE: So, you must then get situations where there are false accusations, so it's actually a way to get back at someone. And you know that [INAUDIBLE]

ALLISON DI CESARE: Honestly-- and I had a client raise this recently-- certainly, you have cases where someone raises harassment, and their allegations are not substantiated. But I've never, myself, seen a case where someone intentionally tried to throw someone under the bus just to get back at them for something. It could happen, certainly. And that kind of bad faith, in terms of how you would address that, I think falls separately from a retaliation reprisal.

You can't retaliate or reprise against someone who, in good faith, thought that this was harassment. If they're intentionally trying to take someone down, it's still in a very risky zone. And you should come talk to us before taking any action about it. But that's a different can of worms. But, yeah, it is often a he said she said. And so, you have to make difficult conclusions.

STEVEN DICKIE: But to address the broader point, it's the public policy of the Province of Ontario that these issues be decided on a balance of probabilities, and that, I guess, theoretically there may be situations, maybe situations I've advised on, where a complaint has been brought in bad faith, and has been substantiated, and somebody has been negatively affected. And that would be, of course, grossly unfair.

But it is not open to you to decide, based on the circumstances, that our preferred approach is that we're going to give people the benefit of the doubt in some sort of higher bar presumption of innocence. Unfortunately, that's just not open to you as an employer under the applicable legislation, regardless of whether or not-- what your feelings are on the merits of that potential approach.

ALLISON DI CESARE: All right, these are just some-- and you'll get the slides. So, I don't think we need to go through this. It just sets out some best practices, like ask questions properly, making sure you're writing everything down. And then, the last point, I think, is just the one that I would raise, which is sometimes you have to take steps pending investigation.

Because if these two people work beside each other and there's some pretty egregious allegations flying between them, it might not make sense, and it might create additional risk for the company to just let that continue while you're investigating the complaint. You might have to separate people. You might have to put people on an administrative leave. There are additional considerations that you have to make.

STEVEN DICKIE: And that engages other risks, including constructive dismissal risks, for the respondent. So, call us.

ALLISON DI CESARE: So just before we open it up to questions, we wanted to talk briefly about a specific case that actually went to the Court of Appeal, and then just some hypothetical situations, talk them through. And then we can open the floor to more questions. So again, at the beginning, we talked about general costs. This case, while it had some really bad facts-- and I hope that none of you are in this situation after you've heard this presentation and understand your obligations-- it resulted in very material financial penalties for this company.

But basically, what happened is the plaintiff was the only woman who worked at this company. She was getting repeatedly sexually harassed by someone. Like, pretty egregious inappropriate comments were being made about her on an almost daily basis. The guy would refer to her breasts as the girls, and talk openly about her body where other people could hear it. Like, it was quite clearly sexual harassment.

She goes to a safety meeting with the managers, and she raises legitimate safety issues about the workplace. And at this stage, everyone else in the room knew that she was going to be fired. So, they started demeaning her, belittling her in the room, and really just completely inappropriate behavior in this meeting. And after the meeting, she goes to her supervisor and says, OK, that's enough. I'm making a formal complaint of sexual harassment. This is too much.

And basically, what they did, because they knew she was going to be fired, they did this self-serving investigation where they didn't really meet with her. They met with the guy. They had a brief meeting with him, essentially setting it up in the beginning, like, with a fake paper trail, to come to the conclusion they wanted to come to just so they could wrap it up quickly, get it done. Fire her anyway.

So, she's terminated without cause a few days later. And she had-- a relevant fact that the judge also considered was that she had to go on anxiety medication after because of how she was treated. And what ends up happening is the Court of Appeal upholds very long notice period from the wrongful dismissal perspective, but also almost $100,000 in damages against her. And part of that, the $60,000 in moral damages was because of how egregious their behavior was.

Like, the investigation was obviously self-serving. There were some comments that were made to her. I think, like, two days before she was terminated, she was told that she was going to be employed for much longer. Like, she was told that you're at no risk of being fired. And then they turn around and fire her two days later. There was a comment that was particularly egregious in the termination meeting where the HR person said to her, you shouldn't have raised these complaints, you're putting this guy's reputation at risk. Why did you why did you make these allegations? Essentially trying to protect the clear harasser in her termination meeting.

So, the facts were bad. Not every harassment case is going to result in damages like this. But it shows that there is the potential for it. And the human rights damages had nothing to do with how particularly egregious it was. Those were just because you didn't investigate properly, whether or not how bad, or ill-informed, or bad faith the investigation was, those $25,000 were just about, you didn't do it right.

STEVEN DICKIE: In our experience, those numbers, both at the high end in the egregious cases and in the more garden-variety cases, are going up.

ALLISON DI CESARE: Yeah, it used to be this artificial $25,000 cap from the tribunal, which is kind of what you see there. But it's being eroded. We just saw one from the BC that was $60,000, I think? Yeah.

So, we'll just set up a couple hypotheticals and then open up to some questions?


ALLISON DI CESARE: OK, so the first is something that's not uncommon, example of a developer getting asked out on dates repeatedly by a more senior colleague, says no, keeps getting asked out. And that starts to impact the developer's work and their performance at the workplace.

STEVEN DICKIE: So, I guess the analysis here is go back to the definition of workplace sexual harassment, which includes a sexual solicitation or advance-- sexual or romantic 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. So that element is engaged, because you have a more senior individual who has power and authority over a more junior individual.

And so, remember, the test for workplace harassment-- workplace sexual harassment-- is that something-- that the conduct is unwelcome, or ought reasonably have known to be unwelcome. And I think in this scenario, the key fact is it's repeated attempts to get the individual to go out on a date with somebody.

Now, without providing any sort of safe harbor and all the legal qualifications in the world, somebody asked somebody out on a date-- a co-worker out on a date-- respectfully. And that person declines. And that's the end of it. You may find, even if there's a complaint later, that that did not arise to the level of workplace sexual harassment if it was respectful, and appropriate, and a bona fide inquiry that was accepted once it was turned down.

But in a situation where it's repeated and annoying, then that is most likely going to cross that threshold, and therefore trigger the legal obligations that we've been talking about today. And certainly, any punishment or consequences-- like, say, if it impacts the quality of the work of the person who's at the receiving end of the request for a date, and maybe they start getting negative performance reviews, that may be retaliation and reprisal as well, and certainly an aggravating factor.

And so really, a practical takeaway here is it's incumbent on leaders and senior managers to look for those sudden drops in performance, and do a gut check about what's going on here. And of course, not in every situation is it going to be that sexual harassment is occurring, or something inappropriate. Could be a bona fide drop in execution, and focus, and performance by the employee? Or it could be that something else is going on-- a disability, depression, or substance abuse, or anything else that might trigger other legal obligations that you're certainly going to want a careful and appropriate response to.

But in terms of a practical take away, it's something to keep in mind, and maybe take practical or appropriate steps to make respectful inquiries about what's going on with somebody.

ALLISON DI CESARE: And then just briefly, the second example we wanted to throw out, because this is something that happens pretty commonly, is just a one-off comment like those pants make you look chubby-- a one-off comment like that.

STEVEN DICKIE: People saying, that makes you look-- you know, that dress makes you look awful, or whatever. A passing comment, negative-- or maybe it's even perceived as neutral or positive. It's in the spirit of, like, maybe you shouldn't wear that. Or that isn't the right look for you, or whatever. And some people may think that those types of comments which, especially if you've got a rapport or whatever, are more in the gray zone, and it's-- going back to the legal definition of harassment, it's comments that are unwelcome or ought to have been known to be unwelcome that constitute workplace harassment.

And I think that this engages what Allison was talking about of the interplay between an objective standard and a subjective standard. Ultimately, in this situation, it's not a complete objective standard that a decision maker is going to say, in all of the circumstances, it was reasonable to make that comment or not. It is a blend of the two.

And the effect on the individual-- perhaps they have had a history with eating disorders or other body image issues. And it wasn't intended in a malicious or overly overt, attacking way by the person making the comment, but it's a relevant factor to the analysis, how it's-- the effect on the person who receives the comment. So, in that case, you perhaps this is a situation where it's in the gray zone about whether it's inappropriate or not.

Maybe it is. And maybe the investigation that is appropriate in the circumstances is not some full-blown, we're going to sit down, this is a discipline meeting-- you know, like investigation. It is about the manager meeting individually with the people, after receiving the complaint or overhearing it, just asking for their side of the story-- well, how did that make you feel, what was the intent behind that comment-- and then maybe a quick follow-up email or something to the person who made the comment, just explaining that it caused the other individual hurt and upset, and that it's your expectation that you won't make comments about anybody's appearance in the workplace-- just level setting.

And that response, in terms of the investigation, and then the discipline-- I mean, technically, is it a written warning? OK, maybe. We might want to characterize it as a written warning if it happens again, of course. But it's not necessarily that everything is a firing offense, or that there's got to be some sort of formal disciplinary record. You know, that may be the way that they describe that play out, it may, in the circumstances, be completely appropriate to handle something with a lower level of formality. But the fact that you documented it, you've turned your mind to the issue, that your policy has been engaged, these are all things that demonstrate that the company has discharged its legal obligations.

AUDIENCE: [INAUDIBLE] my main comments on the [INAUDIBLE]. So, you find that positive comments could be [INAUDIBLE] like, hey, nice haircut. I mean, seriously, [INAUDIBLE]?

ALLISON DI CESARE: Again, it's all going to be totally contextual. Like, hey, nice haircut might be a bit different than hey, that dress really shows off your curves.

STEVEN DICKIE: Or you look hot today, right? Anything that tends toward a sexualized connotation as opposed to a generic, I like that dress.


AUDIENCE: Or, like, I mean, there are such cases of appropriate dress [INAUDIBLE]



STEVEN DICKIE: Yeah, a manager having a conversation with somebody about, that is not professional appearance, if you're articulating it in the right way, not like your butt is hanging out or-- using appropriate language to frame the issue of this does not meet our expectations, that's going to fall within the performance management exemption in the legislation as this is not harassment. You know, of course, dress code issues you always have to be careful with if there's any sort of ethnic, religious connotation or connection in terms of cultural heritage. That's always something that you're going to want to approach delicately, of course, because we want to be sensitive and welcoming workplaces for everybody.

But it's issues that we can help with. And I think, as long as you're framing everything in a reasonable, and constructive, and professional way, having that approach will serve you in good stead.

ALLISON DI CESARE: And to Steve's point that it's issues we can help out with, If there were anything I were to point you to on this slide, it's the second to last bullet, which is don't wait for the things to get worse. Can't tell you how often-- not just on harassment but other things-- we get the call and it's, like, so this is what's been going on for the last three months. And then it becomes like clean up aisle 4, instead of, like, you call us once at the beginning, and then we can set you off down the road and look forward instead of trying to clean up a mess that's already--

STEVEN DICKIE: And I'll tell you, on my experience, when you get us involved early and we can get on the right path, sometimes the person, even if they've experience-- the complainant, even if they've experienced significant mistreatment and upset, the fact that you're on it, you're showing that you're committed to doing the right thing, investigating, and responding, that can buy you a ton of goodwill with that individual, such that you may be completely in control of the situation and your litigation risk is very manageable.

Because they're already seeing that, hey, they had an issue. They brought your attention. You responded appropriately. You're taking steps. You're generating that goodwill, that faith for them to trust in you, trust in the process. And then, as it plays out, people will see that you did the right thing. And that buys loyalty amongst not only that individual who experienced the behavior and was on the receiving end, but his or her friends and colleagues, who they talk about why they like working at your company was because when they had a complaint, when they had an issue and they brought it to your attention, you did the right thing. You took the appropriate action.

And that can be very powerful. And of course, it has of not only being the right thing to do, but also can be an effective risk management tool in terms of making it much less likely that anybody is going to want to sue you.

AUDIENCE: [INAUDIBLE] harassment between an alleged person within the workplace. What happens when it's from somebody from another company?

ALLISON DI CESARE: So, if the allegation is that someone from another company is harassing one of your workers, that triggers your duty to investigate. Now, what that investigation looks like, it depends. The Ministry's position-- and this isn't written down in black and white in the legislation-- but their position is if you're going to be conducting an investigation, you need to at least take reasonable steps to interview people who don't work for you.

So, whether or not you go about doing that is probably going to depend. Is that other company an important client, and this is going to impact the relationship, and maybe it's worth it accepting the harassment risks-- the liability, in this case, for missing that piece of the investigation? You know, that's all going to be determined on a case-by-case basis. But from the technical, legal standpoint, it still triggers your obligations. And you'd have to investigate it.

STEVEN DICKIE: So, what does that look like? Write to the other company saying, we are in receipt of information that such and such triggered an investigation. We request that so-and-so be made available on a basis to answer questions so we can get all the facts, make a decision. And then, obviously, you can't fire somebody else's employee. But you can ban them from coming into your workplace. If it's a client and a customer, like an account management role, switch the client relationship.

You have to take appropriate actions in the circumstances. And what that looks like may not-- will depend on the circumstances and what you can and cannot do. If it's about somebody from a member of the public harassing the receptionist who comes in repeatedly, it might be about putting a lock-- like a buzz-through lock on the glass door to your office. It might be about coming up with a worker safety plan for that receptionist to walk her to the subway, or to her car, or something like that.

And you know, it's just about being practical. And we can help with ideas, but ultimately, we are going to be looking to you as to what could be effective. And asking the individual, what does he or she want?

ALLISON DI CESARE: Yeah, and when you're investigating, and you're meeting with the complainant, that's something we often suggest that you ask, how would you like to see this resolved?

STEVEN DICKIE: Oftentimes, they're going to say, I don't want anybody to be fired, which is great from your risk management perspective. Because of course, you're managing the risks with both respect to the complainant and the respondent. If you fire the respondent, you may have obligations-- allegations that you didn't properly investigate, notice obligations, the employment contract's unenforceable, you're mistreating me, you know, whatever.

But that's almost like a sweet spot if they say, OK, I don't want anyone to be fired. Because then, that gives you a lot to cover. Maybe you, at the end of the day, you're not happy with the respondent. You think it's inappropriate. You come to a contrary decision. Goodbye.

But maybe, at the end of the day, that gives you the ability to thread the needle. And it's like a written warning for the respondent. And now, you follow up with the complaint and say, this was the-- we confirm that this was the outcome. We took appropriate steps. And you documented that that was their desired outcome. So, you'll look pretty good in terms of discharging your responsibilities. So, I know we're two minutes over. Sorry, we want to let you go.

AUDIENCE: Thank you, guys.